IDEAS home Printed from https://ideas.repec.org/a/eee/irlaec/v32y2012i1p72-82.html
   My bibliography  Save this article

Optimization, path dependence and the law: Can judges promote efficiency?

Author

Listed:
  • Marciano, Alain
  • Khalil, Elias L.

Abstract

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 in relation to the judges-and-efficiency thesis. We thus show that both promoters and critics of the judges-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?," International Review of Law and Economics, Elsevier, vol. 32(1), pages 72-82.
    • Handle: RePEc:eee:irlaec:v:32:y:2012:i:1:p:72-82
    DOI: 10.1016/j.irle.2011.12.010
    as

    Download full text from publisher

    File URL: http://www.sciencedirect.com/science/article/pii/S0144818811000871
    Download Restriction: Full text for ScienceDirect subscribers only
    File URL: https://libkey.io/10.1016/j.irle.2011.12.010?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    As the access to this document is restricted, you may want to look for a different version below or search for a different version of it.

    Other versions of this item:

    References listed on IDEAS

    as
    1. 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.
    2. 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.
    3. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115(1), pages 43-68.
    4. William M. Landes & Richard A. Posner, 1978. "Adjudication as a Private Good," NBER Working Papers 0263, National Bureau of Economic Research, Inc.
    5. Edward L. Glaeser & Andrei Shleifer, 2002. "Legal Origins," The Quarterly Journal of Economics, President and Fellows of Harvard College, vol. 117(4), pages 1193-1229.
    6. Pierre Garrouste & Stavros Iaonnides, 2001. "Evolution and Path-Dependency in Economic Ideas: Past and Present," Post-Print halshs-00274526, HAL.
    7. Luppi, Barbara & Parisi, Francesco, 2010. "Judicial creativity and judicial errors: an organizational perspective," Journal of Institutional Economics, Cambridge University Press, vol. 6(1), pages 91-98, March.
    8. Paul A. David, 2011. "Path Dependence: A Foundational Concept for Historical Social Science," Chapters, in: Peer Zumbansen & Gralf-Peter Calliess (ed.), Law, Economics and Evolutionary Theory, chapter 4, Edward Elgar Publishing.
    9. David, Paul A, 1985. "Clio and the Economics of QWERTY," American Economic Review, American Economic Association, vol. 75(2), pages 332-337, May.
    10. Hirshleifer, Jack, 1977. "Economics from a Biological Viewpoint," Journal of Law and Economics, University of Chicago Press, vol. 20(1), pages 1-52, April.
    11. 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.
    12. Pierre Garrouste & Stavros Ioannides (ed.), 2001. "Evolution and Path Dependence in Economic Ideas," Books, Edward Elgar Publishing, number 1790.
    13. 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.
    14. Liebowitz, S J & Margolis, Stephen E, 1995. "Path Dependence, Lock-in, and History," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 11(1), pages 205-226, April.
    15. Elias Khalil, 2011. "Rational, Normative and Procedural Theories of Beliefs: Can They Explain Internal Motivations?," Journal of Economic Issues, Taylor & Francis Journals, vol. 45(3), pages 641-664.
    16. Khalil, Elias L., 2013. "Lock-in institutions and efficiency," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 27-36.
    17. 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.
    18. Daughety, Andrew F & Reinganum, Jennifer F, 1999. "Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts," American Law and Economics Review, American Law and Economics Association, vol. 1(1-2), pages 158-189, Fall.
    19. Elias Khalil, 2009. "Natural selection and rational decision: two concepts of optimization," Journal of Evolutionary Economics, Springer, vol. 19(3), pages 417-435, June.
    20. Robert F. Mulligan, 2004. "Spontaneously Evolved Social Order versus Positive Legislation in English Constitutional History," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 17(1), pages 41-65, March.
    21. 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.
    22. 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.
    23. 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.
    Full references (including those not matched with items on IDEAS)

    Citations

    Citations are extracted by the CitEc Project, subscribe to its RSS feed for this item.
    as


    Cited by:

    1. Elodie Bertrand, 2014. "‘The fugitive’: The figure of the judge in Coase's economics," Post-Print hal-03481745, HAL.
    2. Przemysław Banasik & Katarzyna Metelska-Szaniawska & Małgorzata Godlewska & Sylwia Morawska, 2022. "Determinants of judges’ career choices and productivity: a Polish case study," European Journal of Law and Economics, Springer, vol. 53(1), pages 81-107, February.
    3. Przemyslaw Banasik & Monika Odlanicka-Poczobutt & Maciej Wolny & Sylwia Morawska, 2020. "Preliminary Identification of Quantitative Factors Determining the Duration of Court Proceedings in Commercial Cases," European Research Studies Journal, European Research Studies Journal, vol. 0(Special 1), pages 279-293.
    4. Khalil, Elias L., 2017. "Socialized view of man vs. rational choice theory: What does smith’s sympathy have to say?," Journal of Economic Behavior & Organization, Elsevier, vol. 143(C), pages 223-240.
    5. Charles Delmotte, 2021. "Simple rules and the Political Economy of Income Taxation: the strengths of a uniform expense rule," European Journal of Law and Economics, Springer, vol. 52(2), pages 323-339, December.
    6. Bartlomiej Biga & Michal Mozdzen, 2021. "Is it Darker in a Larger Courtroom? On the Relationship Between the Size of Regional Court and Exercising the Right to Public Information in Poland," European Research Studies Journal, European Research Studies Journal, vol. 0(1), pages 1189-1203.
    7. Elias L. Khalil, 2012. "Are Instincts Hardened Routines? A Radical Proposal," Monash Economics Working Papers 25-12, Monash University, Department of Economics.
    8. Monika Stachowiak-Kudła & Janusz Kudła, 2022. "Path dependence in administrative adjudication: the role played by legal tradition," Constitutional Political Economy, Springer, vol. 33(3), pages 301-325, September.

    Most related items

    These are the items that most often cite the same works as this one and are cited by the same works as this one.
    1. Khalil, Elias L., 2013. "Lock-in institutions and efficiency," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 27-36.
    2. Carolina Castaldi & Giovanni Dosi, 2003. "The Grip of History and the Scope for Novelty: Some Results and Open Questions on Path Dependence in Economic Processes," LEM Papers Series 2003/02, Laboratory of Economics and Management (LEM), Sant'Anna School of Advanced Studies, Pisa, Italy.
    3. Frank, Joshua, 2005. "Technological lock-in, positive institutional feedback, and research on laboratory animals," Structural Change and Economic Dynamics, Elsevier, vol. 16(4), pages 557-575, December.
    4. Oz Shy, 2011. "A Short Survey of Network Economics," Review of Industrial Organization, Springer;The Industrial Organization Society, vol. 38(2), pages 119-149, March.
    5. Puffert, Douglas J., 2002. "Path Dependence in Spatial Networks: The Standardization of Railway Track Gauge," Explorations in Economic History, Elsevier, vol. 39(3), pages 282-314, July.
    6. Marechal, Kevin, 2007. "The economics of climate change and the change of climate in economics," Energy Policy, Elsevier, vol. 35(10), pages 5181-5194, October.
    7. Malavika Nair & Nicolás Cachanosky, 2017. "Bitcoin and entrepreneurship: breaking the network effect," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 30(3), pages 263-275, September.
    8. Elias L. Khalil, 2012. "Are Instincts Hardened Routines? A Radical Proposal," Monash Economics Working Papers 25-12, Monash University, Department of Economics.
    9. Hunt, Shelby D., 1997. "Resource-advantage theory and the wealth of nations: Developing the socio-economic research tradition," Journal of Behavioral and Experimental Economics (formerly The Journal of Socio-Economics), Elsevier, vol. 26(4), pages 335-357.
    10. Ruttan, Vernon W., 1996. "Sources Of Technical Change: Induced Innovation, Evolutionary Theory And Path Dependence," Bulletins 12974, University of Minnesota, Economic Development Center.
    11. Brousseau, Eric & Garrouste, Pierre & Raynaud, Emmanuel, 2011. "Institutional changes: Alternative theories and consequences for institutional design," Journal of Economic Behavior & Organization, Elsevier, vol. 79(1-2), pages 3-19, June.
    12. Jean‐Philippe Vergne & Rodolphe Durand, 2010. "The Missing Link Between the Theory and Empirics of Path Dependence: Conceptual Clarification, Testability Issue, and Methodological Implications," Journal of Management Studies, Wiley Blackwell, vol. 47(4), pages 736-759, June.
    13. Pasquale Lubello, 2022. "Probit 9 in international trade: another case of institutional path dependence," Review of Agricultural, Food and Environmental Studies, Springer, vol. 103(2), pages 97-116, June.
    14. Kiwit Daniel, 1996. "Path-Dependence In Technological And Institutional Change – Some Criticisms And Suggestions," Journal des Economistes et des Etudes Humaines, De Gruyter, vol. 7(1), pages 69-94, March.
    15. Choi, Young Back, 2008. "Path dependence and the Korean alphabet," Journal of Economic Behavior & Organization, Elsevier, vol. 65(2), pages 185-201, February.
    16. Howells, John, 2003. "The management of innovation and patterns in technological development," Working Papers 2003-5, University of Aarhus, Aarhus School of Business, Department of Management.
    17. Gretz, Richard T., 2010. "Hardware quality vs. network size in the home video game industry," Journal of Economic Behavior & Organization, Elsevier, vol. 76(2), pages 168-183, November.
    18. Vanberg, Margit A., 2005. "Network Externalities and Interconnection Incentives," ZEW Discussion Papers 05-80, ZEW - Leibniz Centre for European Economic Research.
    19. Choi, Young Back, 2013. "Path dependence and the Korean keyboard," Journal of Economic Behavior & Organization, Elsevier, vol. 88(C), pages 37-46.
    20. Wiebke Roß & Jens Weghake, 2018. "Wa(h)re Liebe: Was Online-Dating-Plattformen über zweiseitige Märkte lehren," TUC Working Papers in Economics 0017, Abteilung für Volkswirtschaftslehre, Technische Universität Clausthal (Department of Economics, Technical University Clausthal).

    More about this item

    Keywords

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

    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; Modern Monetary Theory;
    • K00 - Law and Economics - - General - - - General (including Data Sources and Description)

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:eee:irlaec:v:32:y:2012:i:1:p:72-82. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    If CitEc recognized a bibliographic reference but did not link an item in RePEc to it, you can help with this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Catherine Liu (email available below). General contact details of provider: http://www.elsevier.com/locate/irle .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.