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

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.