Creating Social Norms Through Media, Cascades and Cognitive Anchors: Judicial Activism and the Quality of Energy Law from the Perspective of Behavioural Law and Economics

Abstract

This chapter is devoted to the topic of judicial activism (or lack thereof) and the quality of energy law from a behavioural law and economics point of view. It complements our previous research by showing that a third branch of government (judiciary) is not immune to impact from social norms, cascades and cognitive anchors created by media (Golecki and Beldowski, Environmental law and economics, 471–486, 2017). We start with three basic assumptions of the quality of judicial decisions and the latter’s overview from the perspe ctive of law and economics. We then move to the impact of heuristics and biases on adjudication, as well as listing some cascades in energy law. The German nuclear energy policy is discussed in order to note its sudden shift after the Fukushima catastrophe. Subsequently, the legislative reaction is further described to grasp the fallacy of German constitutional ruling on the matter. We suggest that the case of the German nuclear phase-out strengthens our previous findings concerning the sensitivity of judges towards availability of cascades. The conclusions are drawn at the end of the paper.