The Pitfalls of Legislative and Executive Policymaking Compared to Judge-Made Law

Open Access

Abstract

This article uses insights from cognitive psyhology to contrast judge-made law with legislative and executive policymaking. I argue that the predominant narrow conceptions of reason and rationality have led to overly optimistic views of deliberate policymaking at the expense of traditional judge-made law. However, alternative views of what constitutes rationality suggest that judge-made law may have some often overlooked advantages over deliberate policymaking.