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Legal Durability

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  • Ben-Shahar Omri

    (Law and Economics, University of Michigan)

Abstract

This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the "winner" is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, or even undesirable to the winner. The analysis is applied to shed light on durability doctrines relating to trial outcomes (e.g., res judicata and double jeopardy), rules and regulations (e.g., transition relief when rules change), entitlements (e.g., adverse possession and statutes of limitations), and marriages.

Suggested Citation

  • Ben-Shahar Omri, 2005. "Legal Durability," Review of Law & Economics, De Gruyter, vol. 1(1), pages 15-53, April.
    • Handle: RePEc:bpj:rlecon:v:1:y:2005:i:1:n:2
    DOI: 10.2202/1555-5879.1003
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    References listed on IDEAS

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    1. Levmore, Saul, 1993. "The Case for Retroactive Taxation," The Journal of Legal Studies, University of Chicago Press, vol. 22(2), pages 265-307, June.
    2. Fischel, Daniel R & Sykes, Alan O, 1999. "Governmental Liability for Breach of Contract," American Law and Economics Review, American Law and Economics Association, vol. 1(1-2), pages 313-385, Fall.
    3. Spurr, Stephen J., 1991. "An economic analysis of collateral estoppel," International Review of Law and Economics, Elsevier, vol. 11(1), pages 47-61, May.
    4. Landes, William M & Posner, Richard A, 1975. "The Independent Judiciary in an Interest-Group Perspective," Journal of Law and Economics, University of Chicago Press, vol. 18(3), pages 875-901, December.
    5. Ben-Shahar, Omri, 1999. "The Erosion of Rights by Past Breach," American Law and Economics Review, American Law and Economics Association, vol. 1(1-2), pages 190-238, Fall.
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    Cited by:

    1. Saul Levmore & Ariel Porat, 2011. "Bargaining with Double Jeopardy," The Journal of Legal Studies, University of Chicago Press, vol. 40(2), pages 273-293.

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