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Legal Realism for Economists

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  • Matthew C. Stephenson
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    Abstract

    Economists have made great progress in understanding the incentives and behavior of actors who operate outside of traditional economic markets, including voters, legislators, and bureaucrats. The incentives and behavior of judges, however, remain largely opaque. Do judges act as neutral third-party enforcers of substantive decisions made by others? Are judges "ordinary" policymakers who advance whatever outcomes they favor without any special consideration for law as such? Emerging recent scholarship has started to explore more nuanced conceptions of how law, facts, and judicial preferences may interact to influence judicial decisions. This work develops a perspective on judging that can usefully be understood as the modern manifestation of American Legal Realism, a jurisprudential movement of lawyers, judges, and law professors that flourished in the early twentieth century. The purpose of this essay is to introduce, in simplified form, the Realist account of judicial decision making; to contrast this view with alternative theories about law and judging; and to sketch out how a more explicit integration of the Realists' conceptual insights about law and judicial behavior might enrich the rapidly expanding economic work in this field.

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    File URL: http://www.aeaweb.org/articles.php?doi=10.1257/jep.23.2.191
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    Bibliographic Info

    Article provided by American Economic Association in its journal Journal of Economic Perspectives.

    Volume (Year): 23 (2009)
    Issue (Month): 2 (Spring)
    Pages: 191-211

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    Handle: RePEc:aea:jecper:v:23:y:2009:i:2:p:191-211

    Note: DOI: 10.1257/jep.23.2.191
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    References

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    1. Anthony Niblett & Richard Posner & Andrei Shleifer, 2008. "The Evolution of a Legal Rule," NBER Working Papers 13856, National Bureau of Economic Research, Inc.
    2. Gennaioli, Nicola & Shleifer, Andrei, 2007. "Overruling and the instability of law," Journal of Comparative Economics, Elsevier, vol. 35(2), pages 309-328, June.
    3. Gennaioli, Nicola & Shleifer, Andrei, 2008. "Judicial Fact Discretion," Scholarly Articles 3451304, Harvard University Department of Economics.
    4. Gennaioli, Nicola & Shleifer, Andrei, 2007. "The Evolution of Common Law," Scholarly Articles 3451305, Harvard University Department of Economics.
    5. Charles M. Cameron, 2007. "Bargaining and Opinion Assignment on the US Supreme Court," Journal of Law, Economics and Organization, Oxford University Press, vol. 23(2), pages 276-302, June.
    6. Gely, Rafael & Spiller, Pablo T., 1992. "The political economy of supreme court constitutional decisions: The case of Roosevelt's court-packing plan," International Review of Law and Economics, Elsevier, vol. 12(1), pages 45-67, March.
    7. Miles, Thomas J. & Sunstein, Cass R., 2006. "Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron," Working paper 191, Regulation2point0.
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    Cited by:
    1. Stringham, Edward Peter & Zywicki, Todd J., 2011. "Hayekian anarchism," Journal of Economic Behavior & Organization, Elsevier, vol. 78(3), pages 290-301, May.
    2. Niblett, Anthony, 2013. "Tracking inconsistent judicial behavior," International Review of Law and Economics, Elsevier, vol. 34(C), pages 9-20.
    3. Edward Stringham & Todd Zywicki, 2011. "Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England," Public Choice, Springer, vol. 147(3), pages 497-524, June.
    4. Sabine Frerichs, 2011. "False Promises? A Sociological Critique of the Behavioural Turn in Law and Economics," Journal of Consumer Policy, Springer, vol. 34(3), pages 289-314, September.

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