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


  • Marciano, Alain


  • Khalil, Elias L.



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.

Suggested Citation

  • Marciano, Alain & Khalil, Elias L., 2012. "Optimization, Path Dependence and the Law: Can Judges Promote Efficiency?," IEL Working Papers 9, Institute of Public Policy and Public Choice - POLIS.
  • Handle: RePEc:uca:ucaiel:9

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    References listed on IDEAS

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    Cited by:

    1. Elias L. Khalil, 2012. "Are Instincts Hardened Routines? A Radical Proposal," Monash Economics Working Papers 25-12, Monash University, Department of Economics.
    2. repec:eee:jeborg:v:143:y:2017:i:c:p:223-240 is not listed on IDEAS

    More about this item


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

    JEL classification:

    • B40 - Schools of Economic Thought and Methodology - - Economic Methodology - - - General
    • B52 - Schools of Economic Thought and Methodology - - Current Heterodox Approaches - - - Historical; Institutional; Evolutionary
    • K00 - Law and Economics - - General - - - General (including Data Sources and Description)

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