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The Evolution of Precedent

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  • Nicola Gennaioli
  • Andrei Shleifer

Abstract

We evaluate Richard Posner's famous hypothesis that common law converges to efficient legal rules using a model of precedent setting by appellate judges. Following legal realists, we assume that judicial decisions are subject to personal biases, and that changing precedent is costly to judges. We consider separately the evolution of precedent under judicial overruling of previous decisions, as well as under distinguishing cases based on new material dimensions. Convergence to efficient legal rules occurs only under very special circumstances, but the evolution of precedent over time is on average beneficial under more plausible conditions.

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Bibliographic Info

Paper provided by National Bureau of Economic Research, Inc in its series NBER Working Papers with number 11265.

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Date of creation: Apr 2005
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Handle: RePEc:nbr:nberwo:11265

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  1. Glaeser, Edward & Scheinkman, Jose & Shleifer, Andrei, 2003. "The injustice of inequality," Journal of Monetary Economics, Elsevier, vol. 50(1), pages 199-222, January.
  2. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November.
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Cited by:
  1. Ariane Lambert-Mogiliansky & Konstantin Sonin & Ekaterina Zhuravskaya, 2007. "Are Russian Commercial Courts Biased? Evidence from a Bankruptcy Law Transplant," Working Papers w0099, Center for Economic and Financial Research (CEFIR).
  2. Mitchell Berlin & Yaron Leitner, 2005. "Courts and contractual innovation: a preliminary analysis," Working Papers 05-27, Federal Reserve Bank of Philadelphia.
  3. Guiseppe Dari-Mattiacci & Bruno Deffains, 2006. "Uncertainty of Law and the Legal Process," Tinbergen Institute Discussion Papers 06-071/1, Tinbergen Institute.
  4. Sergey Stepanov, 2007. "Shareholder Access to Manager-Biased Courts and the Monitoring/Litigation Tradeoff," Working Papers w0106, Center for Economic and Financial Research (CEFIR).
  5. Luca Anderlini & Leonardo Felli & A. Riboni, 2008. "Statute law or case law?," LSE Research Online Documents on Economics 4433, London School of Economics and Political Science, LSE Library.
  6. 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.
  7. Lambert-Mogiliansky, Ariane & Sonin, Konstantin & Zhuravskaya, Ekaterina, 2006. "Are Russian Commercial Courts Biased? Evidence from a Natural Bankruptcy Experiment," CEPR Discussion Papers 5998, C.E.P.R. Discussion Papers.

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