Optimization, path dependence and the law: Can judges promote efficiency?
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 in relation to the judges-and-efficiency thesis. We thus show that both promoters and critics of the judges-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.
If you experience problems downloading a file, check if you have the proper application to view it first. In case of further problems read the IDEAS help page. Note that these files are not on the IDEAS site. Please be patient as the files may be large.
As the access to this document is restricted, you may want to look for a different version under "Related research" (further below) or search for a different version of it.
Volume (Year): 32 (2012)
Issue (Month): 1 ()
|Contact details of provider:|| Web page: http://www.elsevier.com/locate/irle|
References listed on IDEAS
Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
- Glaeser, Edward Ludwig & Shleifer, Andrei, 2002.
29408124, Harvard University Department of Economics.
- Edward L. Glaeser & Andrei Shleifer, 2001. "Legal Origins," NBER Working Papers 8272, National Bureau of Economic Research, Inc.
- Edward L. Glaeser & Andrei Shleifer, 2001. "Legal Origins," Harvard Institute of Economic Research Working Papers 1920, Harvard - Institute of Economic Research.
- 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.
- Lopez-de-Silanes, Florencio & La Porta, Rafael & Shleifer, Andrei, 2008.
"The Economic Consequences of Legal Origins,"
2962610, Harvard University Department of Economics.
- 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.
- David, Paul A, 1985. "Clio and the Economics of QWERTY," American Economic Review, American Economic Association, vol. 75(2), pages 332-37, May.
- Gennaioli, Nicola & Shleifer, Andrei, 2007.
"The Evolution of Common Law,"
3451305, Harvard University Department of Economics.
- 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.
- Khalil, Elias L., 2013. "Lock-in institutions and efficiency," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 27-36.
- 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.
- Robert F. Mulligan, 2004. "Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 17(1), pages 41-65, 03.
- 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.
- 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.
- Hirshleifer, Jack, 1977.
"Economics from a Biological Viewpoint,"
Journal of Law and Economics,
University of Chicago Press, vol. 20(1), pages 1-52, April.
- Elias Khalil, 2009. "Natural selection and rational decision: two concepts of optimization," Journal of Evolutionary Economics, Springer, vol. 19(3), pages 417-435, June.
- 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.
- 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.
- 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.
- Pierre Garrouste & Stavros Iaonnides, 2001. "Evolution and Path-Dependency in Economic Ideas: Past and Present," Post-Print halshs-00274526, HAL.
- 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.
- 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.
- 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.
When requesting a correction, please mention this item's handle: RePEc:eee:irlaec:v:32:y:2012:i:1:p:72-82. See general information about how to correct material in RePEc.
For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Shamier, Wendy)
If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.
If references are entirely missing, you can add them using this form.
If the full references list an item that is present in RePEc, but the system did not link to it, you can help with this form.
If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your profile, as there may be some citations waiting for confirmation.
Please note that corrections may take a couple of weeks to filter through the various RePEc services.