Economic analysis of the doctrine of separation of powers : the independence of the judiciary

This thesis attempts to apply an economic approach to deal with the positive analysis of the doctrine of separation of powers, focusing on the judicial branch of government, and more specifically on the question: why do we find an 'independent' judiciary as an almost universal phenomenon in democratic countries? The first part of the thesis sets the analytical framework - what I perceive as the broad and moderate view of the economic approach towards law - and defines the phenomenon of the independence of the judiciary to be examined - the gap between the structural independence of the judiciary and its substantive independence. It also includes a literature survey of previous work related to the economic analysis of the doctrine of separation of powers and the positive analysis of the judiciary. A theoretical discussion is in the focus of the second part. It departs from a critical view of the Landes-Posner model of the independence of the judiciary, and proceeds to offer an alternative model. The main argument of the thesis is that, in contrast to the traditional view of separation of powers, we have an independent judiciary because it is in the interests of the government of the day to maintain one. Such an institution is delegated legislative and other powers, by which politicians can maximize their self-goal choices. The third part of the thesis presents some empirical findings in an attempt to support the proposed positive model of judicial independence. A statistical approach is taken to investigate the decisions whether to promote judges from the English Court of Appeal to the House of Lords, shedding new light on attitudes of British governments towards the independence of the judiciary. A more descriptive-narrative approach is taken in the final chapter, portraying and analyzing the relations between the Israeli judiciary and the other branches of government. It is argued that the analysis of these relations lends support to the delegation theory of the independence of the judiciary.</p

The Law and Economics Analysis of Intellectual Property: Paradigmatic Shift From Incentives to Traditional Property

This paper focuses on the normative analysis of intellectual property rights, in light of the technological revolution of the Internet and accompanying technologies. After a brief overview of the various philosophical justifications for awarding intellectual property rights, it identifies two major Law and Economics paradigms for the analysis of intellectual property: the incentives paradigm, which is founded upon the public goods analysis of neo-classical microeconomic theory, and the tragedy of the commons literature, which is based on the economic analysis of externalities. The paper raises several points of critique towards both frameworks of analysis and especially towards their inability to point to the desirable extent of intellectual property rights (IPR) and the direction of their reform required as the result of the recent technological revolution. It further criticizes the dominant contemporary Law and Economics writings in this field as shifting to a new proprietary paradigm that pre-assumes information to be an object of property, overlooking its fundamental differences from physical property and focusing on its management rather than on its initial justifications. The paper is concluded with some tentative thoughts on the general notion of Property Rights in light of the contemporary approach concerning intellectual property.