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Legal Precedent: A Theoretical and Empirical Analysis

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William M. Landes
Richard A. Posner

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Abstract

The use of precedents to create rules of legal obligation has, to our knowledge, received little theoretical or empirical analysis. This paper presents and tests empirically an economic approach to legal precedent that is derived mainly from the analysis of capital formation and investment. We treat the body of legal precedents created by judicial decisions in prior periods as a capital stock that yields a flow of information services which depreciates over time as new conditions arise that were not foreseen by the framers of the existing precedents. New (and replacement) capital is created by investment in the production of precedents.

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Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 0146.

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Date of creation: Aug 1976
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Handle: RePEc:nbr:nberwo:0146

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  1. Martin Schneider, 2005. "Judicial Career Incentives and Court Performance: An Empirical Study of the German Labour Courts of Appeal," European Journal of Law and Economics, Springer, vol. 20(2), pages 127-144, September. [Downloadable!] (restricted)
  2. Giuseppe Dari-Mattiacci & Bruno Deffains, 2006. "Uncertainty of Law and the Legal Process," Working Papers of BETA 2006-11, Bureau d'Economie Théorique et Appliquée, ULP, Strasbourg. [Downloadable!]
    Other versions:
  3. Alain Marciano, 2006. "Value and Exchange in Law and Economics: Buchanan versus Posner," ICER Working Papers 31-2006, ICER - International Centre for Economic Research. [Downloadable!]
    Other versions:
  4. Marie Obidzinski & Bruno Deffains, 2006. "Real Options Theory for Law Maker," Working Papers of BETA 2006-04, Bureau d'Economie Théorique et Appliquée, ULP, Strasbourg. [Downloadable!]
  5. Scott A. Boorman & Paul R. Levitt, 1983. "Blockmodeling Complex Statutes: Mapping Techniques Based on Combinatorial Optimization for Analyzing Economic Legislation and Its Stress Points over Time," Cowles Foundation Discussion Papers 665, Cowles Foundation, Yale University. [Downloadable!]
  6. Levy, Gilat, 2003. "Careerist Judges," CEPR Discussion Papers 3948, C.E.P.R. Discussion Papers. [Downloadable!] (restricted)
  7. Álvaro Bustos, 2008. "A Dynamic Theory of Common Law Courts," Documentos de Trabajo 352, Instituto de Economía. Pontificia Universidad Católica de Chile.. [Downloadable!]
  8. Ignacio Palacios-Huerta & Oscar Volij, 2002. "The Measure of Intellectual Influence," Working Papers 2002-13, Brown University, Department of Economics. [Downloadable!]
  9. Paresh Kumar Narayan & Russell Smyth, 2006. "Temporal causality and the dynamics of judicial appellate caseload, real income and socio-economic complexity in Australia," Applied Economics, Taylor and Francis Journals, vol. 38(19), pages 2209-2219, October. [Downloadable!] (restricted)
  10. Martin Schneider, 2002. "Judicial Lawmaking in a Civil Law System: Evidence from German Labor Courts of Appeal," Discussion Papers 200202, Institute of Labour Law and Industrial Relations in the European Community (IAAEG). [Downloadable!]
  11. Virginia Rosales-López, 2008. "Economics of court performance: an empirical analysis," European Journal of Law and Economics, Springer, vol. 25(3), pages 231-251, June. [Downloadable!] (restricted)
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