Staying our of court? Reservations about a supposed practice and a popular policy

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Abstract

The phrase ‘staying out of court’ raises two questions. Firstly, is there really
a tendency to stay out of court? Secondly, if this tendency exists, is it a
welcome development or a regrettable one? The first question is difficult to
answer, as there are opposing inclinations. And since the judicial domain is a
multilayered phenomenon, there is no way of telling whether the tendency is
pervasive.
To gain a clearer overview of the judicial domain, it seems advisable
to switch from a quantitative to a qualitative perspective, which
conceptualises adjudication as part of the democratic decision-making
process. We are then in the position to distinguish different kinds of increase
or decline in broad or deep judgments and are also able to identify the
drawbacks of a practice or a policy of staying out of court: for example, the
loss of common ownership, accessibility, visibility and plurality. These
findings set limits to a government policy of staying out of court, both in
terms of breadth in large numbers of cases as well as in depth for exemplary
and complex cases.
Original languageEnglish
Pages (from-to)107-120
Number of pages13
JournalErasmus Law Review
Volume1
Issue number5
Publication statusPublished - 2008
Externally publishedYes

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