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

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 and that we address in this paper. We thus show that both promoters and critics of the judge-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 pathdependent. Thus, the output of legal systems cannot be efficient or inefficient per se.

A estrutura da ação estratégica protagonizada pela empresa de médio porte: um estudo longitudinal multicaso de incorporadoras imobiliárias familiares

“…Quando a empresa renovou-se para se firmar no mercado de alto padrão, o relacionamento com um ator -então proprietário de uma antiga área rural em um bairro nobre -possibilitou que a empresa sustentasse uma sequência de lançamentos em alguns dos melhores terrenos do novo bairro e, assim, estabelecer-se no mercado almejado. ZHANG, 2011;BARNEY, 1991;PIERSON, 2000;SCHMIDT;SPINDLER, 2002;WEBSTER, 2008;MARCIANO;KHALIL, 2012;DAVID, 2007;LEONARD-BARTON, 1992;ARTHUR, 1989;BALDWIN et al, 2005;MINTZBERG, 1978 Fonte: Dados da pesquisa (2014).…”

Preliminary Identification of Quantitative Factors Determining the Duration of Court Proceedings in Commercial Cases

“…Thus, the impact of voluntary and forced rotation of judges between court districts on performance has been examined (Guerra and Tagliapietra, 2017), the degree of formality of court procedures (Di Vita 2010; Djankov, La Porta, Lopez-de Silanes and Shleifer, 2003), the number or organisational structure of courts (Antonelli and Grembi, 2013), incentive systems for judges and lawyers (e.g. remuneration system, career path: Choi, Gulati and Posner, 2009;Lim 2013, Melcarne andRamello 2015), judges' productivity (Christensen and Szmer, 2012;Marciano and Khalil 2012), knowledge, expertise-judge's seniority (Ramseyer 2012), accountability (Goelzhauser, 2012), individual task-scheduling method adopted by the judge Persico, 2014a, 2014b), caseload-the relationship between judicial staff and court performance (Dimitrova-Grajzl et al, 2012;Lienhard, Kettiger, 2010).…”

“…According to the Montesquieu's idea, the judiciary is one of the most important institutions in the country due to the execution of substantial social tasks, and the economic development of each country depends largely on an efficient judicial system. Such an approach is far from being innovative, but it should be stressed that theoretical and empirical research on the state of the judiciary has been carried out in fact only for fifteen years, (Botero, La Porta and Lopez-de-Silanes, 2003), and has been intensifying for the last seven years (Christensen and Szmer, 2012;Dimitrova-Grajzl et al, 2012;De Shazo and Vargas, 2006;Eisenberg and Huang, 2012;Marciano and Khalil, 2012;Ramello, 2012;Ramello and Voigt, 2012;Ramseyer, 2012;Voigt, 2012).…”

‘The fugitive’: The figure of the judge in Coase's economics

“…25 On the efficiency of precedents, see Harnay and Marciano (2004) and Marciano and Khalil (2012), but their notions of efficiency are different from Coase's. the role of the common law judge. What remains is that Coase seems to prefer standards interpreted by common law judges who would be efficient.…”