Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System

Hathaway, Oona A.

doi:10.2139/ssrn.239332

Cited by 62 publications

(52 citation statements)

References 5 publications

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“…An example of path dependence as narrowing the choice set is the juridical principle of precedence (and stare decisis) in the English common law tradition: courts are bound by past judgments and cannot divert without special reasons, thus reinforcing the traditional interpretation of law over long periods of time (Hathaway 2000). The broader concept of path dependence thus reflects the metaphor of branching path- ways, of sequential junctures at which collective actors decide which of the available alternative pathways they will follow.…”

Section: Path Dependence Ii: Branching Pathways and The Structuring Omentioning

confidence: 99%

Can Path Dependence Explain Institutional Change? Two Approaches Applied to Welfare State Reform

Ebbinghaus¹

2009

The Evolution of Path Dependence

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MPIfG Discussion Papers are refereed scholarly papers of the kind that are publishable in a peer-reviewed disciplinary journal. Their objective is to contribute to the cumulative improvement of theoretical knowledge. The papers can be ordered from the institute for a small fee (hard copies) or downloaded free of charge (PDF). AbstractPath dependence as a concept in institutional theories has become increasingly popular in economics and other social sciences. The key idea is that in a sequence of events, the latter events are not (completely) independent from those that occurred in the past. Yet, common usage of the concept often subsumes two markedly different models and approaches to understand historical sequencing. The two main processes of the past shaping the future -diffusion and developmental pathways -must be distinguished analytically. This paper juxtaposes (1) the unplanned "trodden path" that takes shape through the subsequent repeated use by other individuals of that spontaneously chosen path, and (2) the "branching pathways" or juncture at which one of the available alternative pathways must be chosen in order to continue a journey. Furthermore, the typical approaches and their explanatory purchase are discussed in reference to explanations of institutional change. The paper shows that the first path dependence theorem is too deterministic and inflexible, whereas the second approach is sufficiently supple to analyze various forms of institutional change. ZusammenfassungPfadabhängigkeit wird in den Sozial-und Wirtschaftswissenschaften zunehmend als Konzept institutioneller Theorien angewendet. Der Grundgedanke ist, dass in einer Sequenz von Ereignissen (oder Entscheidungen) spätere nicht (vollkommen) unabhängig von vorangegangenen sind. Jedoch wird in gängigen Anwendungen des Konzepts oft versäumt, nach zwei äußerst unterschiedlichen Verständnissen historischer Sequenzen zu differenzieren. Die zwei Prozesse der Strukturierung der Zukunft durch die Vergangenheit -Diffusionspfade und Entwicklungspfade -sollen analytisch getrennt werden. Dieser Aufsatz unterscheidet (1) den zufälligen "Trampelpfad", welcher durch die vermehrte Benutzung eines Pfades spontan entsteht, von (2) dem "Scheideweg", an dem einer der möglichen Pfade gewählt werden muss, um den Weg fortzusetzen. Im Weiteren wird der Erklärungsbeitrag der beiden Ansätze in Bezug auf die Erklärung institutionellen Wandels erörtert. Es zeigt sich, dass das erste Pfadabhängigkeitstheorem zu deterministisch und inflexibel ist, der zweite Pfadabhängig-keitsansatz hingegen offen genug, unterschiedliche Formen institutionellen Wandels zu analysieren.

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Section: Path Dependence Ii: Branching Pathways and The Structuring Omentioning

confidence: 99%

Can Path Dependence Explain Institutional Change? Two Approaches Applied to Welfare State Reform

Ebbinghaus¹

2009

The Evolution of Path Dependence

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“…Thus, he argues, reckless rules will come to dominate the common law and he further speculates that the growth in legislation displacing the common law in the 20th century might result from a perceived need to correct reckless common law doctrines. Hathaway (2001) similarly argues that the use of stare decisis in the common law could lead to lock-in or path dependency in the common law, potentially preserving inefficient precedents (or precedents that are originally efficient but which become inefficient as social conditions change) as much as efficient ones. She argues that judges should be alert to situations where the costs of path dependency are especially high and should relax the binding force of precedent in those situations.…”

Section: = (Vl)mentioning

confidence: 99%

Common law and economic efficiency

Zywicki¹,

Stringham²

2017

Encyclopedia of Law and Economics

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“…21 In addition to the aforementioned processes such as cumulative cost reductions, identiied in the original economics literature on path-dependence and lock-in, a growing body of work has identiied a number of additional drivers and processes linked to path-dependent outcomes. These include cognitive or epistemic processes, such as the effects of technological paradigms, 22,23 the importance of path-dependent processes in institutions, [24][25][26] which can range from legal systems 27 to less rigidly deined culturally accepted 'ways of doing things', or everyday practices; 21 and notions such as the 'technological regime', deined as the 'the whole complex of scientiic knowledges, engineering practices, production process technologies, product characteristics, skills and procedures, and institutions and infrastructures that make up the totality of a technology'. 28 Given that lock-in of particular socio-technical conigurations can act to constrain future choices in profound ways, understanding path-dependent processes and lock-in of different types has important implications for democracy and social justice.…”

Section: Theorizing Socio-technical Development and Persistencementioning

confidence: 99%

Climate geoengineering: issues of path‐dependence and socio‐technical lock‐in

Cairns

2014

WIREs Climate Change

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As academic and policy interest in climate geoengineering grows, the potential irreversibility of technological developments in this domain has been raised as a pressing concern. The literature on socio‐technical lock‐in and path dependence is illuminating in helping to situate current concerns about climate geoengineering and irreversibility in the context of academic understandings of historical socio‐technical development and persistence. This literature provides a wealth of material illustrating the pervasiveness of positive feedbacks of various types (from the discursive to the material) leading to complex socio‐technical entanglements which may resist change and become inflexible even in the light of evidence of negative impacts. With regard to climate geoengineering, there are concerns that geoengineering technologies might contribute so‐called ‘carbon lock‐in’, or become irreversibly ‘locked‐in’ themselves. In particular, the scale of infrastructures that geoengineering interventions would require, and the issue of the so‐called ‘termination effect’ have been discussed in these terms. Despite the emergent and somewhat ill‐defined nature of the field, some authors also suggest that the extant framings of geoengineering in academic and policy literatures may already demonstrate features recognizable as forms of cognitive lock‐in, likely to have profound implications for future developments in this area. While the concepts of path‐dependence and lock‐in are the subject of ongoing academic critique, by drawing analytical attention to these pervasive processes of positive feedback and entanglement, this literature is highly relevant to current debates around geoengineering. WIREs Clim Change 2014, 5:649–661. doi: 10.1002/wcc.296 This article is categorized under: Policy and Governance > Multilevel and Transnational Climate Change Governance Social Status of Climate Change Knowledge > Climate Science and Decision Making

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Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System

Cited by 62 publications

References 5 publications

Can Path Dependence Explain Institutional Change? Two Approaches Applied to Welfare State Reform

Can Path Dependence Explain Institutional Change? Two Approaches Applied to Welfare State Reform

Common law and economic efficiency

Climate geoengineering: issues of path‐dependence and socio‐technical lock‐in

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