The Virtue of Path Dependence in the Law
73 Pages Posted: 6 Jul 2017
Date Written: February 1, 2016
Does the rule of law foster normatively desirable development? As the increasingly prominent literature on path dependence in the law explains, law can be inflexible, inefficient and potentially unjust because courts follow down the path most traveled in prior disputes instead of seeking out the most appropriate resolution to the problem at hand. This path dependence, the literature submits, is particularly problematic because the courts first venturing down any particular path could not possibly have anticipated the scope of future disputes to which their early holdings would be applied.
The growing legal literature on path dependence similarly so far has not developed an account of the value of path dependence. Without such an account, legal path dependence would point to a potential disconnect between the rule of law and desirable development. The rule of law critically requires that legal decisions be made in a stable and transparent manner – a stability and transparency that necessarily imports path dependence. Such path dependence appears developmentally desirable only if the quality of early legal decisionmaking is normatively desirable. As the quality of early legal decisionmaking – per the path dependence literature – is frequently deeply problematic due to the lack of information about the future application of legal decision available to early decision makers, the growing literature suggests a potential disconnect between normatively desirable development and the rule of law.
This Article addresses this problem head on by providing a normative defense of path dependence. This normative defense explains how and why a path dependent rule of law fosters normatively desirable development. Path dependence makes it possible for an open democratic society to improve in a Pareto-superior manner along the four dimensions of openness, prosperity, freedom, and criticality. Development without such path dependence instead could erode one or more of these dimensions and as such be normatively less desirable.
To support this normative claim about the virtue of path dependence in legal development, The Virtue of Path Dependence in the Law draws upon leading development research in the social sciences. In particular, the Article relies upon the economic theories on development of Nobel Laureate Amartya Sen and their further refinement in political theory by Martha Nussbaum. Their work was instrumental in rejecting a cost or utility measure as the single or singly most important axiom of development. This Article applies their insight to the value of law in development.
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