Malthus the Federal Judge: A Comprehensive Economic Defense of Selective Publication of Judicial Opinions

Shlomo Maza, St. John's University - New York

Abstract

My article seeks to examine the system of limited publication using the tools of economic analysis. Non-publication and its accompanying non-citation rules are in force in all of our courts, yet subject to widespread academic criticism. By using the tools of economic analysis, particularly the Rule of Diminishing Marginal Returns as put forth by both Classical and more modern economists, I seek to provide an economic model that provides theoretical support for non-publication. This model demonstrates that because of the inherent nature of legal precedent and its role in our legal system non-publication is not merely the lesser of two evils, but is in fact the optimal course.