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Overruling and the instability of law

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  • Gennaioli, Nicola
  • Shleifer, Andrei

Abstract

We investigate the evolution of common law under overruling, a system of precedent change in which appellate courts replace existing legal rules with new ones. We use a legal realist model, in which judges change the law to reflect their own preferences or attitudes, but changing the law is costly to them. The model's predictions are consistent with the empirical evidence on the overruling behavior of the U.S. Supreme Court and appellate courts. We find that overruling leads to unstable legal rules that rarely converge to efficiency. The selection of disputes for litigation does not change this conclusion. Our findings provide a rationale for the value of precedent, as well as for the general preference of appellate courts for distinguishing rather than overruling as a law-making strategy.

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Bibliographic Info

Article provided by Elsevier in its journal Journal of Comparative Economics.

Volume (Year): 35 (2007)
Issue (Month): 2 (June)
Pages: 309-328

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Handle: RePEc:eee:jcecon:v:35:y:2007:i:2:p:309-328

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Web page: http://www.elsevier.com/locate/inca/622864

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References

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  1. Rafael La Porta & Florencio Lopez-de-Silanes & Cristian Pop-Eleches & Andrei Shleifer, 2004. "Judicial Checks and Balances," Journal of Political Economy, University of Chicago Press, vol. 112(2), pages 445-470, April.
  2. Kornhauser, Lewis A, 1992. "Modeling Collegial Courts. II. Legal Doctrine," Journal of Law, Economics and Organization, Oxford University Press, vol. 8(3), pages 441-70, October.
  3. Spiller, Pablo T & Tiller, Emerson H, 1997. "Decision Costs and the Strategic Design of Administrative Process and Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 347-70, June.
  4. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68.
  5. Robert Cooter & Lewis Kornhauser & David Lane, 1979. "Liability Rules, Limited Information, and the Role of Precedent," Bell Journal of Economics, The RAND Corporation, vol. 10(1), pages 366-373, Spring.
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Cited by:
  1. Cozzi, Guido & Galli, Silvia, 2013. "Sequential R&D and Blocking Patents in the Dynamics of Growth," Economics Working Paper Series 1305, University of St. Gallen, School of Economics and Political Science.
  2. Miceli, Thomas J., 2010. "Legal change and the social value of lawsuits," International Review of Law and Economics, Elsevier, vol. 30(3), pages 203-208, September.
  3. Massenot, Baptiste, 2011. "Financial development in adversarial and inquisitorial legal systems," Journal of Comparative Economics, Elsevier, vol. 39(4), pages 602-608.
  4. Cozzi, Guido & Galli, Silvia, 2011. "Upstream innovation protection: common law evolution and the dynamics of wage inequality," MPRA Paper 31902, University Library of Munich, Germany.
  5. Anderlini, Luca & Felli, Leonardo & Riboni, Alessandro, 2010. "Why Stare Decisis ?," Economics Papers from University Paris Dauphine 123456789/7720, Paris Dauphine University.
  6. Hefeker, Carsten & Neugart, Michael, 2010. "Labor market regulation and the legal system," International Review of Law and Economics, Elsevier, vol. 30(3), pages 218-225, September.
  7. Guerriero, C., 2009. "Democracy, Judicial Attitudes and Heterogeneity: The Civil Versus Common Law Tradition," Cambridge Working Papers in Economics 0917, Faculty of Economics, University of Cambridge.
  8. Matthew C. Stephenson, 2009. "Legal Realism for Economists," Journal of Economic Perspectives, American Economic Association, vol. 23(2), pages 191-211, Spring.
  9. Niblett, Anthony, 2013. "Tracking inconsistent judicial behavior," International Review of Law and Economics, Elsevier, vol. 34(C), pages 9-20.

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