The Shadow of Your Law and the Judge Over Your Shoulder

ABSTRACT

Many problems in public policy and delivery which are otherwise difficult to understand, make much more sense when viewed as strategies for the management of legal risk. Civil servants, infrastructure developers and other parties who are subject to the risk of legal review often act as if there was a “judge over their shoulder”, taking pre‐emptive action to mitigate the risk despite the fact that doing so increases the cost and delay to important projects. It might be possible to improve outcomes significantly by moving more contentious issues out of the scope of litigation and improving consultation.