Slavisa Tasic (Collegio Carlo Alberto) has posted Judicial Activism: Towards a Utilitarian Defense on SSRN. Here is the abstract:
This article develops a utilitarian case for an activist judiciary in common law and strong constitutional review in civil law. While the legal and political side of a protective judiciary has been somewhat recognized, there is the largely neglected economic side of the argument in favor of a strong judiciary. The case for an activist judiciary rests not on the excessive belief in the wisdom and virtue of the judiciary branch, but rather on a skeptical view of the abilities of the legislative branch. We argue that by anchoring decisions on constitutional principles rather than popular preferences, an activist judiciary contributes to the emergence of market friendly institutions. A strong constitutional judiciary is behaviorally less likely to buy into the same fallacies that legislation, by following mass opinion, does. On the contrary, by checking policy ideas against constitutionally guaranteed rights, the judiciary may inadvertently work towards creating a market friendly institutional environment.