Title

Courts as Auditors of Legislation?

Publication

George Mason Law Review

Volume

29

Page

447

Year

2022

Abstract

This Essay argues that the normative problem of determining a hierarchy of legal sources may be usefully understood in terms of mechanism design. Specifically, the normative problem proposes that legislation and judicial precedent operate complementarily; assuming the normative objective that the citizenry ought to be governed by legal rules that reflect the “will of the people,” judge-made law can function as an audit on the rules promulgated by elected legislatures. The two sources of law, working in conjunction, thereby correct the deficiencies inherent in either approach operating in isolation.


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