Judicial Creativity and Judicial Errors: An Organizational Perspective

Journal of Institutional Economics (forthcoming)

Minnesota Legal Studies Research Paper No. 09-09

12 Pages Posted: 22 Feb 2009 Last revised: 14 Nov 2011

See all articles by Francesco Parisi

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Barbara Luppi

University of St. Thomas School of Law; Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics

Date Written: February 16, 2009

Abstract

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.

Keywords: judicial errors, stare decisis, jurisprudence constante

JEL Classification: K0, K13, K40, K41

Suggested Citation

Parisi, Francesco and Luppi, Barbara, Judicial Creativity and Judicial Errors: An Organizational Perspective (February 16, 2009). Journal of Institutional Economics (forthcoming), Minnesota Legal Studies Research Paper No. 09-09, Available at SSRN: https://ssrn.com/abstract=1344399

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

Barbara Luppi

University of St. Thomas School of Law

2115 Summit Avenue
Saint Paul, MN 55105
United States

Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics ( email )

Viale Berengario 51
41100 Modena, Modena 41100
Italy

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