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Legal Change: Selective Litigation, Judicial Bias, and Precedent

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  • Thomas J. Miceli

Abstract

A key question in the literature on legal change is whether the law evolves via the conscious efforts of judges or is the result of invisible-hand processes. This paper confirms Priest's claim that when judges are unbiased, selective litigation alone can cause the law to evolve toward efficiency. However, when judges are biased, the direction of legal change depends on whether the extent of judicial bias is large enough to overcome the selective litigation effect. The paper also shows that the desirability of binding precedent lies in its ability to restrain biased judges from driving the law away from efficiency. (c) 2009 by The University of Chicago. All rights reserved.

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  • 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.
  • Handle: RePEc:ucp:jlstud:v:38:y:2009:i:1:p:157-168
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    References listed on IDEAS

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    1. Fon, Vincy & Parisi, Francesco, 2006. "Judicial precedents in civil law systems: A dynamic analysis," International Review of Law and Economics, Elsevier, vol. 26(4), pages 519-535, December.
    2. William M. Landes, 1974. "An Economic Analysis of the Courts," NBER Chapters,in: Essays in the Economics of Crime and Punishment, pages 164-214 National Bureau of Economic Research, Inc.
    3. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    4. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, pages 404-415.
    5. 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.
    6. Shavell, Steven, 1996. "Any Frequency of Plaintiff Victory at Trial Is Possible," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 493-501, June.
    7. Cooter, Robert D & Rubinfeld, Daniel L, 1989. "Economic Analysis of Legal Disputes and Their Resolution," Journal of Economic Literature, American Economic Association, pages 1067-1097.
    8. 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.
    9. Robert Cooter & Lewis Kornhauser & David Lane, 1979. "Liability Rules, Limited Information, and the Role of Precedent," Bell Journal of Economics, The RAND Corporation, vol. 10(1), pages 366-373, Spring.
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    Cited by:

    1. Pierre Bentata & Yolande Hiriart, 2015. "Biased Judges: Evidence from French Environmental Cases," Working Papers hal-01377922, HAL.
    2. Miceli, Thomas J., 2010. "Legal change and the social value of lawsuits," International Review of Law and Economics, Elsevier, pages 203-208.
    3. Thomas J. Miceli, 2008. "An Equilibrium Model of Lawmaking," Working papers 2008-16, University of Connecticut, Department of Economics.
    4. 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.
    5. Giorgio Rampa & Margherita Saraceno, 2014. "Beliefs and Precedent: The Dynamics of Access to Justice," DEM Working Papers Series 084, University of Pavia, Department of Economics and Management.
    6. Grajzl, Peter & Murrell, Peter, 2016. "A Darwinian theory of institutional evolution two centuries before Darwin?," Journal of Economic Behavior & Organization, Elsevier, vol. 131(PA), pages 346-372.
    7. Thomas J. Miceli, 2008. "The Social versus Private Incentive to Sue," Working papers 2008-12, University of Connecticut, Department of Economics.

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