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Professor Neil K. Komesar has championed the notion that the creation and application of legal rules should generally consider the comparative institutional competence of different rule makers. To be sure, earlier judges (like Louis Brandeis and Felix Frankfurter) and scholars (like Willard Hurst and Henry Hart) anticipated the broad contours of Komesar’s comparative institutional analysis, but none engaged in this kind of analysis with the analytical rigor that Komesar has accomplished.
In a series of legal classics, Professor Komesar makes the following claim: judges ought to be reluctant to develop aggressive doctrines to solve problems that other institutions (especially the market and legislatures) are handling satisfactorily, and should be particularly loathe to trump market or legislative rules when the judiciary is not competent to administer such doctrine effectively and with acceptable costs. As aneconomist would put it, the first prong of this analysis involves the “demand” function for judicial doctrine, and the second prong involves the “supply” function.
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