The rule of the least imperfect : a review of Despoina Mantzari 'Courts, regulators, and the scrutiny of economic evidence' (OUP 2022)

Abstract

In this timely book, Dr. Despoina Mantzari tackles a prominent question in regulation: how do generalist courts handle the decisions of specialist decision-makers? Markets require decision-makers to engage with expert knowledge. While regulators are institutionally structured to handle this task, the same cannot be said about generalist courts. As Mantzari puts it, there is an 'epistemic asymmetry' between courts and regulators in tackling complex economic matters. As such, judicial control presents many challenges for the error-correction function of adjudication. The book exposes and addresses these challenges by analyzing regulatory decisions and the corresponding systems of judicial review in the utilities sector. The book essentially claims that 'the least imperfect' institution should interpret and decide on economic evidence, turning the question into one of relative institutional competencies. Unless a specialist court is established, expert agencies are generally better-situated ('less imperfect') to analyze economic evidence. In such a setting, generalist courts ensure legality of decisions by assessing whether regulators conform to principles of rationality or due process.