The dynamic quality of law: The role of judicial incentives and legal human capital in the adaptation of law

Hadfield, Gillian K.

doi:10.1016/j.jebo.2011.02.006

Cited by 20 publications

(8 citation statements)

References 34 publications

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“…Since Judge Posner's assertion that the common law is efficient (Posner [1973] 2007), the law and economics literature has sought to explain why this might be so (Priest 1977;Rubin 1977;Bailey and Rubin 1994;Hylton 2006). Both Posner's assertion about efficient common law and the models exploring it have been sharply contested (Hadfield 1992;Bailey and Rubin 1994;Hathaway 2001). The literature has blossomed, with many factors pointing toward and against efficiency (Zywicki 2003;Klerman 2007;Parisi and Fon 2008).…”

Section: Rational Jurisprudencementioning

confidence: 99%

“…There are a few exceptions to the litigant-selection story about the evolution of law. Cooter, Kornhauser, and Lane (1979) and Hadfield (2011) develop models in which the court can learn and ask whether rules will adapt to new circumstances or converge to efficiency. Unlike our model, the question of how to optimally deploy judicial resources over many periods is not examined.…”

Section: Rational Jurisprudencementioning

confidence: 99%

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A Theory of Rational Jurisprudence

Baker

Mezzetti

2012

Journal of Political Economy

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We examine a dynamic model of up-or-down problem solving. A decision maker can either spend resources investigating a new problem before deciding what to do or decide on the basis of similarity with precedent problems. Over time, a decision-making framework, or jurisprudence, develops. We focus on the model's application to judgemade law. We show that judges summarily apply precedent in some cases. The law may converge to efficient or inefficient rules. With positive probability, identical cases are treated differently. As the court learns over time, inconsistencies become less likely. We discuss the existing empirical evidence and the model's testable implications.We would like to thank the associate editor and two anonymous referees; their insightful comments have led to a substantial improvement of the paper. We also thank participants at workshops at

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Section: Rational Jurisprudencementioning

confidence: 99%

Section: Rational Jurisprudencementioning

confidence: 99%

A Theory of Rational Jurisprudence

Baker

Mezzetti

2012

Journal of Political Economy

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“…However, several scholars remark that designers of the code in Civil Law countries also take into account both the evolution of the social norms (whence the subdiscipline of "legal doctrine" that is grounded in philosophy) and the possible maladaptation of the legal framework as revealed by courts or by citizens who try to influence politicians in the Parliament (see, e.g., Deffains and Kirat, 2001). More generally, Hadfield (2011) develops an in-depth analysis of the institutional parameters favoring the adaptability of legal rules; she argues that the judiciary's organization matters more than the legal origins. In any case, if the law is able to evolve with practices and is flexible enough to fit the diversity of socioeconomic needs, then legal institutions enable a mutual recognition of rights among socioeconomic actors and form the basis for further renegotiation and possible redesign toward the end of reaching a higher level of efficiency on the barriers.…”

Section: Interplay Between the Polity The Law And The Economy: The mentioning

confidence: 99%

Institutional changes: Alternative theories and consequences for institutional design

Brousseau

Garrouste

Raynaud

2011

Journal of Economic Behavior & Organization

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a b s t r a c tThis paper surveys alternative approaches to the emergence and evolution of institutions. The challenge is to develop frameworks capable of capturing both stability and change. We follow a "descaling" approach to show how founding assumptions about economics-namely, alternative assumptions about individual rationality and the role of social efficiency-influence our understanding of the drivers of institutional evolution. We then contrast two families of institutional theory. In the first, institutions are viewed as rules imposed on individuals and the focus is on the strategic games among coalitions that aim to promote or block new rules. In the second, institutions are viewed as shared beliefs; here the idea is to analyze how equilibria that are self-enforcing (in terms of mutual expectations about others' behaviors) can collapse and so induce switching to another equilibrium. Finally, we discuss the political economy literature that examines institutional transitions to a market economy, and we identify long-term drivers as well as short-term political barriers to institutional reforms.

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“…Commentaries by legal scholars and broader projects such as the American Law Institute's Restatements may help dissipate doubts about how existing law should be interpreted in light of changing social and economic conditions and hence reduce legal uncertainty (Hadfield, 2008(Hadfield, , 2011. The parameter ˛ embedding these factors affects inversely adjudication as the function n * = (I * ; ˛) in (9) is decreasing in ˛.…”

Section: Legal Scholarsmentioning

confidence: 99%