Overruling and the instability of law Gennaioli, Nicola; Shleifer, Andrei

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Authors
Gennaioli, Nicola ; Shleifer, Andrei
Appears In
Journal of Comparative Economics
Subjects
Common law -- Forecasts and trends; Statutes -- Interpretation and construction; Statutes -- Analysis
Audience
Academic
Summary
"We investigate the evolution of common law under overruling, a system of precedent change in which appellate courts replace existing legal rules with new ones. We use a legal realist model, in which judges change the law to reflect their own preferences or attitudes, but changing the law is costly to them. The model's predictions are consistent with the empirical evidence on the overruling behavior of the U.S. Supreme Court and appellate courts. We find that overruling leads to unstable legal rules that rarely converge to efficiency. The selection of disputes for litigation does not change this conclusion. Our findings provide a rationale for the value of precedent, as well as for the general preference of appellate courts for distinguishing rather than overruling as a law-making strategy"--National Bureau of Economic Research web site.
Bookmark
http://trove.nla.gov.au/work/1494373
Work ID
1494373

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