Judicial creativity and judicial errors: an organizational perspective
Barbara Luppi () and
Francesco Parisi ()
Journal of Institutional Economics, 2010, vol. 6, issue 1, 91-98
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 by 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.
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