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

Abstract:     
In this paper, Professor Hathaway develops a theory of "path dependence" to explain the role of history in the American common law system. In processes that are path-dependent, outcomes depend upon the particularities of the historical path that leads to them. For this reason, path dependence may produce results that are not foreseen, desired, efficient, or suited to current conditions. Under the rubric of path dependence, the paper identifies three separate models of historical evolution and change, drawn in turn from economics, political science, and evolutionary biology. It then describes the specific analytical tools that each model provides for understanding the American common law system, which is built on the explicitly backward-looking doctrine of stare decisis. Drawing on these new insights, the paper ends with a normative analysis of the doctrine of stare decisis, concluding that where the costs of path dependence are high, the application of stare decisis should be relaxed.

JEL Classifications: K10, K40

Accepted Paper Series