The Evolution of Common Law

@article{Gennaioli2007TheEO,
  title={The Evolution of Common Law},
  author={Nicola Gennaioli and Andrei Vasiliev Dmitry Shleifer},
  journal={Journal of Political Economy},
  year={2007},
  volume={115},
  pages={43 - 68}
}
We present a model of lawmaking by appellate courts in which judges influenced by policy preferences can distinguish precedents at some cost. We find a cost and a benefit of diversity of judicial views. Policy‐motivated judges distort the law away from efficiency, but diversity of judicial views also fosters legal evolution and increases the law’s precision. We call our central finding the Cardozo theorem: even when judges are motivated by personal agendas, legal evolution is, on average… 
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References

SHOWING 1-10 OF 57 REFERENCES
Overruling and the Instability of Law
Case Law versus Statute Law: An Evolutionary Comparison
Case law develops gradually through the rulings of appellate judges who have heterogeneous preferences but are partially bound by stare decisis. We show that its evolution converges toward more
Liability rules, limited information, and the role of precedent
Recent studies of the role of law in distributing accident costs have led to the pessimistic conclusion that because judges lack the information to discover the efficient level of care, efficiency
The Common Law Process and the Selection of Efficient Rules
ing certain characteristic legal issues with respect to which it is most plausible that ideology will influence judicial decisions.33 These studies, however, have weaknesses similar to those of
Contracting in the Shadow of the Law
Economic models of contract typically assume that courts enforce obligations based on verifiable events (corresponding to the legal rule of specific performance). As a matter of law, this is not the
Can Litigation Improve the Law without the Help of Judges?
Is the common law "efficient"? Do actual tort liability rules minimize the sum of accident costs and accident-prevention costs? Do actual nuisance rules lead to optimal levels of output, optimal
Why Is the Common Law Efficient?
POSNER, in Economic Analysis of Law, ' argues persuasively that the common law can be best understood as an attempt to achieve economic efficiency. He is less persuasive in his explanation of why
ON THE NATURE OF SUPREME COURT DECISION MAKING
How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key
Judicial Checks and Balances
In the Anglo‐American constitutional tradition, judicial checks and balances are often seen as crucial guarantees of freedom. Hayek distinguishes two ways in which the judiciary provides such checks
The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis
This article revisits the debate over the institutional foundations of the efficiency in the common law by examining the supply-side conditions of the production of common law legal rules. Previous
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