Path Dependency, the High Court, and the Constitution

25 Pages Posted: 29 Jun 2020

See all articles by Jeremy Patrick

Jeremy Patrick

University of Southern Queensland School of Law

Date Written: June 5, 2020

Abstract

Path dependence is a concept that originally arose in the field of economics before gaining currency with political scientists and historians. The essence of path dependency is that temporality matters: once a decision is made, it often becomes “locked-in” and persists despite the existence of more efficient or otherwise better alternatives that could become apparent later. The tentative hypothesis advanced here is that the concept of path dependency is useful for understanding why some doctrines of Australian constitutional law have changed dramatically since first developed while others remain largely the same. An example of one arguably path-dependent line of doctrine and one arguably non-path-dependent line of doctrine are discussed and analysed to demonstrate the possibilities and limitations of the theory.

Keywords: Path Dependency, High Court, Constitution, Precedent, Stare Decisis

JEL Classification: K00

Suggested Citation

Patrick, Jeremy J., Path Dependency, the High Court, and the Constitution (June 5, 2020). Available at SSRN: https://ssrn.com/abstract=3619609 or http://dx.doi.org/10.2139/ssrn.3619609

Jeremy J. Patrick (Contact Author)

University of Southern Queensland School of Law ( email )

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