Judicial Creativity and Judicial Errors: An Organizational Perspective
University of Minnesota - Law School; University of Bologna
Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics; University of St. Thomas School of Law
February 16, 2009
Journal of Institutional Economics (forthcoming)
Minnesota Legal Studies Research Paper No. 09-09
The different role played by case law and the historical and conceptual differences between the doctrines of precedent in common law and civil law traditions are important determinants of judicial creativity. In this article we consider a hybrid version of stare decisis, called with the French name of jurisprudence constante, adopted by mixed jurisdictions. Unlike stare decisis which allows a single precedent to establish case law, the doctrine of jurisprudence constante links the recognition of a judge-made rule to the existence of a consecutive line of decisions affirming the same legal principle. We develop a model to consider the effects of this doctrine on the social costs arising from judicial error and uncertainty in case law. We further consider the effects of these alternative doctrines of precedent on judicial creativity and ideological bias in judge-made law.
Number of Pages in PDF File: 12
Keywords: judicial errors, stare decisis, jurisprudence constante
JEL Classification: K0, K13, K40, K41Accepted Paper Series
Date posted: February 22, 2009 ; Last revised: November 14, 2011
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