Imperfect legislative agreements and judicial policymaking. A theoretical inquiry

Abstract

ABSTRACT This article examines how imperfect legislative agreements offer an opportunity for higher courts’ intervention in policymaking. In concrete terms, it explains that lawmakers in certain situations avoid resolving apparent conflicts of interest due to high transaction costs in the legislative process, maintaining statutory criteria considered transparently inefficient or by simply developing regulatory arrangements with a significant degree of indeterminacy. Employing a simplified model of rational choice behaviour, the article asserts that those scenarios constitute an opportunity for strategic involvement of the higher courts in crafting public policy. As an unintended consequence of the imperfect legislative agreements, justices look at them as an indicator that members of the other branches of government have reached weak political compromises or are unable to impose their policy preferences. Therefore, justices can exercise discretion, foreseeing prospects to increase their authority while the risk of an overruling or the implementation of other retaliatory measures remains low.