Why Stare Decisis?

The practice of horizontal stare decisis requires that judges occasionally decide cases `incorrectly'. What sustains this practice? Given a heterogeneous bench, we show that the increasing dierences in dispositions property of preferences generates gains when judges trade dispositions over the case space. These gains are fully realized by implementing a compromise rule stare decisis. Absent commitment, we provide conditions that sustain the compromise in a repeated game. When complete compromises become unsustainable, partial compromises still avail. Moreover, judges may prefer to implement partial compromises even when perfect ones are sustainable. Thus, stare decisis is consistent with a partially-settled,partially-contested legal doctrine.

Chicago Kent Law Review, 1989

On what theory of adjudication do economic analyses of law rely? To the normative question "How ought judges to decide cases?" some economic analysts, though not all, respond: "Judges ought to decide cases to promote efficiency." ' To the positive question "How do judges decide cases?"-that is, "By what principles or practices of reasoning do judges in fact decide cases?"-economic analysts of law have remained silent. In the study of substantive legal rules, this silence is explicable. After all, to the economic analyst the behavior of citizens or agents, not judges, is central. Agents choose levels of care, they choose to form contracts, or to perform contracts all in light of the governing "legal rules." These "legal rules," however, have significance for the agents only to the extent that differing legal consequences attach to different choices; expected liability, fines, or criminal sentence may all vary with the agent's choice. If more than one legal consequence may follow from a given action, then the agent must know the likelihood of each consequence. Because, in the economic theory of legal behavior, the legal rule offers no reason to act beyond the incentives provided by the legal consequences, 2

Law and Philosophy

One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall justification of stare decisis. One traditional answer to this problem consists in accepting this moral cost, on the belief that the benefits of stare decisis outweigh it. On this view, when there is an undefeated legal obligation to follow a morally deficient precedent, the court must simply follow precedent. In this article, I question this approach and defend an alternative solution. I argue that, under some conditions, a court facing a morally deficient precedent should have the power to either follow the precedent or suspend its application to the parties by ordering a temporary stay of proceedings and referr...

2015

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). ...

International Review of Law and Economics, 2003

mle.economia.unibo.it

European Economic Review, 2020

We analyze the efficiency and consistency of court decisions under common and civil law. As a leading example, we study the enforcement of property rights. Judges are of two types: some are conservative and follow the precedent or the statute, while others maximize social welfare. When courts intervene ex-post, after the relevant economic choices have been made, welfare-maximizing courts face a "commitment problem." Such an ex-post bias has implications on the relative "consistency" and efficiency of each legal system. Surprisingly, we find that court decisions are more consistent under common law than under civil law. The welfare comparison between the two systems is, instead, ambiguous. However, in changing economic environments, common law is more likely to dominate civil law because of its greater adaptability.

German Law Journal, 2013

Although the temporal effects of judicial decisions have not completely escaped the attention of academic reviewers, the research on this topic is far from thorough. Most research focuses on the Court of Justice of the European Union (CJEU), thereby ignoring the temporal effects of judicial decisions of national or constitutional courts. This lack of interest is remarkable given the interaction between the national and European level.

I develop a dynamic model of judge made law in which the ideal legal rule is unknown but can be learned. In contrast to existing papers, the ow of cases heard by the court is aected by its prior decisions. The model highlights the signicance of this feedback in explaining when and why the court will write broader or narrower opinions, and the long run properties of common law. In equilibrium, the law settles endogenously, since the incentives to make legally controversial choices disappear as the law evolves. Settled law exhibits residual uncertainty and ambiguity, and potentially implements inecient outcomes. JEL Codes: K10, K40

Fordham L. Rev., 1953