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Optimization, Path Dependence and the Law: Can Judges Promote Efficiency?

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  • Marciano, Alain

    ()

  • Khalil, Elias L.

    ()

Abstract

The thesis that judges could (voluntarily or not) promote efficiency through their decisions has largely been discussed since Posner put it forward in the early 1970s. There nonetheless remains a methodological aspect that has never (to our knowledge) been analyzed and that we address in this paper. We thus show that both promoters and critics of the judge-and-efficiency thesis similarly use a definition of optimization in which history, constraints and path-dependency are viewed as obstacles that must be removed to reach the most efficient outcome. This is misleading. Efficiency cannot be defined in absolute terms, as a “global ideal” that would mean being free from any constraint, including historically deposited ones. That judges are obliged to refer to the past does not mean that they are unable to make the most efficient decision because constraints are part of the optimization process; or optimization is necessarily path- dependent. Thus, the output of legal systems cannot be efficient or inefficient per se. This is what we argue in this paper.

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File URL: http://polis.unipmn.it/pubbl/RePEc/uca/ucaiel/iel009.pdf
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Bibliographic Info

Paper provided by Institute of Public Policy and Public Choice - POLIS in its series IEL Working Papers with number 9.

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Length: 43 pages
Date of creation: Feb 2012
Date of revision:
Handle: RePEc:uca:ucaiel:9

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Web page: http://polis.unipmn.it

Related research

Keywords: Judicial decision making; Historical inertia; Inefficiency; Adaptationism; Spandrelism; Global ideal; Rationality; Lock-in institutions.;

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  1. Lopez-de-Silanes, Florencio & La Porta, Rafael & Shleifer, Andrei, 2008. "The Economic Consequences of Legal Origins," Scholarly Articles 2962610, Harvard University Department of Economics.
  2. Elias L. Khalil, 2011. "Rational, Normative and Procedural Theories of Beliefs: Can They Explain Internal Motivations?," Journal of Economic Issues, M.E. Sharpe, Inc., vol. 45(3), pages 641-664, September.
  3. Khalil, Elias L., 2013. "Lock-in institutions and efficiency," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 27-36.
  4. Robert F. Mulligan, 2004. "Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History," The Review of Austrian Economics, Springer, vol. 17(1), pages 41-65, 03.
  5. Paul A. David, 2007. "Path dependence: a foundational concept for historical social science," Cliometrica, Journal of Historical Economics and Econometric History, Association Française de Cliométrie (AFC), vol. 1(2), pages 91-114, July.
  6. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, MIT Press, vol. 117(4), pages 1193-1229, November.
  7. Elias Khalil, 2009. "Natural selection and rational decision: two concepts of optimization," Journal of Evolutionary Economics, Springer, vol. 19(3), pages 417-435, June.
  8. Khalil, Elias L., 2010. "The Bayesian fallacy: Distinguishing internal motivations and religious beliefs from other beliefs," Journal of Economic Behavior & Organization, Elsevier, vol. 75(2), pages 268-280, August.
  9. Vincy Fon & Francesco Parisi & Ben Depoorter, 2005. "Litigation, Judicial Path-Dependence, and Legal Change," European Journal of Law and Economics, Springer, vol. 20(1), pages 43-56, July.
  10. Liebowitz, S J & Margolis, Stephen E, 1995. "Path Dependence, Lock-in, and History," Journal of Law, Economics and Organization, Oxford University Press, vol. 11(1), pages 205-26, April.
  11. S. J. Liebowitz & Stephen E. Margolis, 1994. "Network Externality: An Uncommon Tragedy," Journal of Economic Perspectives, American Economic Association, vol. 8(2), pages 133-150, Spring.
  12. Daughety, Andrew F & Reinganum, Jennifer F, 1999. "Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts," American Law and Economics Review, Oxford University Press, vol. 1(1-2), pages 158-89, Fall.
  13. Hirshleifer, Jack, 1977. "Economics from a Biological Viewpoint," Journal of Law and Economics, University of Chicago Press, vol. 20(1), pages 1-52, April.
  14. Liebowitz, S J & Margolis, Stephen E, 1990. "The Fable of the Keys," Journal of Law and Economics, University of Chicago Press, vol. 33(1), pages 1-25, April.
  15. David, Paul A, 1985. "Clio and the Economics of QWERTY," American Economic Review, American Economic Association, vol. 75(2), pages 332-37, May.
  16. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68.
  17. Jack Hirshleifer, 1977. "Economics from a Biological Viewpoint," UCLA Economics Working Papers 087, UCLA Department of Economics.
  18. Luppi, Barbara & Parisi, Francesco, 2010. "Judicial creativity and judicial errors: an organizational perspective," Journal of Institutional Economics, Cambridge University Press, vol. 6(01), pages 91-98, March.
  19. Klaus Heine & Wolfgang Kerber, 2002. "European Corporate Laws, Regulatory Competition and Path Dependence," European Journal of Law and Economics, Springer, vol. 13(1), pages 47-71, January.
  20. Sushil Bikhchandani & David Hirshleifer & Ivo Welch, 1998. "Learning from the Behavior of Others: Conformity, Fads, and Informational Cascades," Journal of Economic Perspectives, American Economic Association, vol. 12(3), pages 151-170, Summer.
  21. Harnay, Sophie & Marciano, Alain, 2003. "Judicial conformity versus dissidence: an economic analysis of judicial precedent," International Review of Law and Economics, Elsevier, vol. 23(4), pages 405-420, December.
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Cited by:
  1. Elias L. Khalil, 2012. "Are Instincts Hardened Routines? A Radical Proposal," Development Research Unit Working Paper Series 25-12, Monash University, Department of Economics.

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