Stare Decisis and Judicial Log-Rolls: A Gains-from-Trade Model
51 Pages Posted: 6 Nov 2017
Date Written: June 9, 2017
The practice of horizontal stare decisis requires that judges occasionally decide cases "incorrectly''. What sustains this practice? Given a heterogeneous bench, we show that the increasing differences in dispositions property of preferences generates gains when judges trade dispositions over the case space. These gains are fully realized by implementing a compromise rule – stare decisis. Absent commitment, we provide conditions that sustain the compromise in a repeated game. When complete compromises become unsustainable, partial compromises still avail. Moreover, judges may prefer to implement partial compromises even when perfect ones are sustainable. Thus, stare decisis is consistent with a partially-settled-partially-contested legal doctrine.
Keywords: Judge-Made Law, Endogenous Precedent, Stare Decisis, Gains from Trade
JEL Classification: K10, K40
Suggested Citation: Suggested Citation