Thursday, December 16, 2004
The role that courts and cases play in legal change is, of course, widely recognized in the common law world. What judges do has been much studied. But judges can do nothing until lawyers and litigants bring them a case. How do the decisions of the litigants themselves drive changes in legal remedies?
A new paper by Vincy Fon, Francesco Parisi, and Ben DePoorter, Litigation, Judicial Path-Dependence, and Legal Change, forthcoming in the European Journal of Law and Economics, explores the role of case selection in the development of legal remedies. The abstract:
In this paper we consider the role that litigation and case selection play in the process of legal change. We examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation between parties with different stakes. In the presence of asymmetric stakes, judicial path dependence may lead to consolidation or contraction of legal rules. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the degree of asymmetry in the litigation stakes, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.