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 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.
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.:
- Nicola Gennaioli & Andrei Shleifer, 2007.
"The Evolution of Common Law,"
Journal of Political Economy,
University of Chicago Press, vol. 115, pages 43-68.
- Edward L. Glaeser & Andrei Shleifer, 2001.
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.
- 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.
- 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.
- 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.
- Pierre Garrouste & Stavros Iaonnides, 2001. "Evolution and Path-Dependency in Economic Ideas: Past and Present," Post-Print halshs-00274526, HAL.
- Andrei Shleifer & Florencio Lopez-de-Silanes & Rafael La Porta, 2008.
"The Economic Consequences of Legal Origins,"
Journal of Economic Literature,
American Economic Association, vol. 46(2), pages 285-332, June.
- Lopez-de-Silanes, Florencio & La Porta, Rafael & Shleifer, Andrei, 2008. "The Economic Consequences of Legal Origins," Scholarly Articles 2962610, Harvard University Department of Economics.
- Rafael La Porta & Florencio Lopez-de-Silanes & Andrei Shleifer, 2007. "The Economic Consequences of Legal Origins," NBER Working Papers 13608, National Bureau of Economic Research, Inc.
- 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.
- 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.
- Khalil, Elias L., 2013. "Lock-in institutions and efficiency," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 27-36.
- 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.
- Paul A. David, 2011. "Path Dependence: A Foundational Concept for Historical Social Science," Chapters, in: Law, Economics and Evolutionary Theory, chapter 4 Edward Elgar.
- 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.
- 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.
- 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.
- David, Paul A, 1985. "Clio and the Economics of QWERTY," American Economic Review, American Economic Association, vol. 75(2), pages 332-37, May.
- Hirshleifer, Jack, 1977. "Economics from a Biological Viewpoint," Journal of Law and Economics, University of Chicago Press, vol. 20(1), pages 1-52, April.
- 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.
- 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.
- Jack Hirshleifer, 1977. "Economics from a Biological Viewpoint," UCLA Economics Working Papers 087, UCLA Department of Economics.
- Elias Khalil, 2009. "Natural selection and rational decision: two concepts of optimization," Journal of Evolutionary Economics, Springer, vol. 19(3), pages 417-435, June.
- 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.
When requesting a correction, please mention this item's handle: RePEc:uca:ucaiel:9. 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: (Lucia Padovani)
If references are entirely missing, you can add them using this form.