IDEAS home Printed from https://ideas.repec.org/a/fau/aucocz/au2012_209.html
   My bibliography  Save this article

Judicial Dissent under Externalities and Incomplete Information

Author

Listed:
  • Rustam Romaniuc

    (Expert-Grup think tank, Chisinau, Moldova)

Abstract

The issue of the stability and change of legal rules occupies a central place in the discussions of alternative ways of organizing justice and the provision of legal rules. There nonetheless remains a theoretical aspect that has never been raised in the literature on judicial decision making and legal change. Judges that are not bound by precedent and can change the law directly by overruling previous decisions have to make a particular decision about the direction the new precedent will take. We show that under incomplete information about judges’ eagerness to choose according to their ideal points, there are two candidates for the particular legal rule that is to become the new precedent: (i) judge’s private optimum; and (ii) some other legal rule that can differ from (i) and corresponds to the empirical and normative expectations of a large subset of judges within the judicial population. The individual judge that has decided not to stick to the precedent faces therefore a trade-off, he has to ch oose among alternative legal rules that yield alternative levels of public and private satisfaction of preferences.

Suggested Citation

  • Rustam Romaniuc, 2012. "Judicial Dissent under Externalities and Incomplete Information," Czech Economic Review, Charles University Prague, Faculty of Social Sciences, Institute of Economic Studies, vol. 6(3), pages 209-224, October.
    • Handle: RePEc:fau:aucocz:au2012_209
    as

    Download full text from publisher

    File URL: http://auco.cuni.cz/mag/article/download/id/133/type/attachment
    Download Restriction: no
    ---><---

    References listed on IDEAS

    as
    1. 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.
    2. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115, pages 43-68.
    3. Greif,Avner, 2006. "Institutions and the Path to the Modern Economy," Cambridge Books, Cambridge University Press, number 9780521480444, December.
    4. Klick, Jonathan & Parisi, Francesco, 2008. "Social networks, self-denial, and median preferences: Conformity as an evolutionary strategy," Journal of Behavioral and Experimental Economics (formerly The Journal of Socio-Economics), Elsevier, vol. 37(4), pages 1319-1327, August.
    5. 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.
    6. Von Wangenheim, Georg, 1993. "The evolution of judge-made law," International Review of Law and Economics, Elsevier, vol. 13(4), pages 381-411, December.
    7. J. Buchanan & Y. Yoon, 2012. "Choosing for others: A neglected element in the theory of collective action," Public Choice, Springer, vol. 153(1), pages 9-16, October.
    8. Rasmusen, Eric, 1994. "Judicial Legitimacy as a Repeated Game," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 10(1), pages 63-83, April.
    9. Thomas J. Miceli & Alanson P. Minkler, 1997. "Preferences, cooperation, and Institutions," Working papers 1997-06, University of Connecticut, Department of Economics.
    10. Anthony Niblett & Richard A. Posner & Andrei Shleifer, 2010. "The Evolution of a Legal Rule," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 325-358.
    11. Basu, Kaushik, 2003. "Prelude to Political Economy: A Study of the Social and Political Foundations of Economics," OUP Catalogue, Oxford University Press, number 9780199261857.
    12. Thomas J. Miceli, 2009. "Legal Change: Selective Litigation, Judicial Bias, and Precedent," The Journal of Legal Studies, University of Chicago Press, vol. 38(1), pages 157-168, January.
    13. Kaplow, Louis & Shavell, Steven, 1994. "Why the Legal System Is Less Efficient Than the Income Tax in Redistributing Income," The Journal of Legal Studies, University of Chicago Press, vol. 23(2), pages 667-681, June.
    14. Bicchieri,Cristina, 2006. "The Grammar of Society," Cambridge Books, Cambridge University Press, number 9780521573726, December.
    15. Landes, William M & Posner, Richard A, 1976. "Legal Precedent: A Theoretical and Empirical Analysis," Journal of Law and Economics, University of Chicago Press, vol. 19(2), pages 249-307, August.
    16. Whitman, Douglas Glen, 2000. "Evolution of the Common Law and the Emergence of Compromise," The Journal of Legal Studies, University of Chicago Press, vol. 29(2), pages 753-781, June.
    17. 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.
    18. Bicchieri,Cristina, 2006. "The Grammar of Society," Cambridge Books, Cambridge University Press, number 9780521574907, December.
    19. Miceli, Thomas J. & Cosgel, Metin M., 1994. "Reputation and judicial decision-making," Journal of Economic Behavior & Organization, Elsevier, vol. 23(1), pages 31-51, January.
    20. Kuran, Timur, 1998. "Ethnic Norms and Their Transformation through Reputational Cascades," The Journal of Legal Studies, University of Chicago Press, vol. 27(2), pages 623-659, June.
    21. Kuran, Timur, 1990. "Private and Public Preferences," Economics and Philosophy, Cambridge University Press, vol. 6(1), pages 1-26, April.
    Full references (including those not matched with items on IDEAS)

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Aldashev, Gani & Chaara, Imane & Platteau, Jean-Philippe & Wahhaj, Zaki, 2012. "Using the law to change the custom," Journal of Development Economics, Elsevier, vol. 97(2), pages 182-200.
    2. Whitman, Douglas Glen, 2005. "The Role of Panels in Enhancing Legal Predictability," International Review of Law and Economics, Elsevier, vol. 25(4), pages 541-555, December.
    3. 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.
    4. Gilat Levy, 2005. "Careerist Judges," RAND Journal of Economics, The RAND Corporation, vol. 36(2), pages 275-297, Summer.
    5. Robin Christmann, 2014. "No Judge, No Job! Court errors and the contingent labor contract," European Journal of Law and Economics, Springer, vol. 38(3), pages 409-429, December.
    6. Larcom Shaun, 2013. "Accounting for Legal Pluralism: The Impact of Pre-colonial Institutions on Crime," The Law and Development Review, De Gruyter, vol. 6(1), pages 25-59, November.
    7. 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.
    8. Whitman Douglas Glen, 2002. "Legal Entrepreneurship and Institutional Change," Journal des Economistes et des Etudes Humaines, De Gruyter, vol. 12(2), pages 1-13, June.
    9. Masahiko Aoki, 2011. "Linking Economic and Social-Exchange Games: From the Community Norm to CSR," Palgrave Macmillan Books, in: Lorenzo Sacconi & Giacomo Degli Antoni (ed.), Social Capital, Corporate Social Responsibility, Economic Behaviour and Performance, chapter 5, pages 129-148, Palgrave Macmillan.
    10. Erik O. Kimbrough & Alexander Vostroknutov, 2016. "Norms Make Preferences Social," Journal of the European Economic Association, European Economic Association, vol. 14(3), pages 608-638, June.
    11. Ryan Muldoon & Chiara Lisciandra & Cristina Bicchieri & Stephan Hartmann & Jan Sprenger, 2014. "On the emergence of descriptive norms," Politics, Philosophy & Economics, , vol. 13(1), pages 3-22, February.
    12. Nicolas Brisset, 2016. "Institutions as Emergent Phenomena: Redefining Downward Causation," Working Papers halshs-01425669, HAL.
    13. Dimant, Eugen, 2015. "On Peer Effects: Behavioral Contagion of (Un)Ethical Behavior and the Role of Social Identity," MPRA Paper 68732, University Library of Munich, Germany.
    14. Thomas J. Miceli, 2008. "An Equilibrium Model of Lawmaking," Working papers 2008-16, University of Connecticut, Department of Economics.
    15. Teppo Felin & Peter T. Leeson & Christopher J. Coyne, 2012. "Wisdom, Alterability, and Social Rules," Managerial and Decision Economics, John Wiley & Sons, Ltd., vol. 33(5-6), pages 441-451, July.
    16. Anthony Gill, 2021. "The comparative endurance and efficiency of religion: a public choice perspective," Public Choice, Springer, vol. 189(3), pages 313-334, December.
    17. Marciano, Alain & Khalil, Elias L., 2012. "Optimization, path dependence and the law: Can judges promote efficiency?," International Review of Law and Economics, Elsevier, vol. 32(1), pages 72-82.
    18. Ojo, Marianne, 2015. "Harmonisation du Hayek et Posner: Posner, Hayek et l'analyse économique du droit [Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law]," MPRA Paper 65190, University Library of Munich, Germany.
    19. Karine Nyborg, 2020. "No Man is an Island: Social Coordination and the Environment," Environmental & Resource Economics, Springer;European Association of Environmental and Resource Economists, vol. 76(1), pages 177-193, May.
    20. Niblett, Anthony, 2013. "Tracking inconsistent judicial behavior," International Review of Law and Economics, Elsevier, vol. 34(C), pages 9-20.

    More about this item

    Keywords

    Judicial decision-making; reputation; legal change; evolution of judge-made law;
    All these keywords.

    JEL classification:

    • D79 - Microeconomics - - Analysis of Collective Decision-Making - - - Other
    • K00 - Law and Economics - - General - - - General (including Data Sources and Description)
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:fau:aucocz:au2012_209. 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: . General contact details of provider: https://edirc.repec.org/data/icunicz.html .

    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 CitEc recognized a bibliographic reference but did not link an item in RePEc 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 RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Lenka Stastna (email available below). General contact details of provider: https://edirc.repec.org/data/icunicz.html .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.