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.

Additional Metadata
Keywords government policy, judicial domain, out of court settlement, private law
Persistent URL
Series Erasmus Law Review
Journal Erasmus Law Review
Loth, M.A. (2008). Staying out of the Court? Reservations about a supposed practice and a popular policy. Erasmus Law Review, 1(5). Retrieved from