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SSRN Electronic Journal
Article . 2008 . Peer-reviewed
Data sources: Crossref
SSRN Electronic Journal
Article . 2008 . Peer-reviewed
Data sources: Crossref
EconStor
Research . 2008
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Statute Law or Case Law?

Authors: Anderlini, Luca; Felli, Leonardo; Riboni, Alessandro;

Statute Law or Case Law?

Abstract

In a Case Law regime Courts have more flexibility than in a Statute Law regime. Since Statutes are inevitably incomplete, this confers an advantage to the Statute Law regime over the Case Law one. However, all Courts rule ex-post, after most economic decisions are already taken. Therefore, the advantage of flexibility for Case Law is unavoidably paired with the potential for time-inconsistency. Under Case Law, Courts may be tempted to behave myopically and neglect ex-ante welfare because, ex-post, this may afford extra gains from trade for the parties currently in Court. The temptation to behave myopically is traded off against the effect of a Court's ruling, as a precedent, on the rulings of future Courts. When Case Law matures this temptation prevails and Case Law Courts succumb to the time-inconsistency problem. Statute Law, on the other hand pairs the lack of flexibility with the ability to commit in advance to a given (forward looking) rule. This solves the time-inconsistency problem afflicting the Case Law Courts. We conclude that when the nature of the legal environment is sufficiently heterogeneous and/or changes sufficiently often, the Case Law regime is superior: flexibility is the prevailing concern. By the same token, when the legal environment is sufficiently homogeneous and/or does not change very often, the Statute Law regime dominates: the ability to overcome the time-inconsistency problem is the dominant consideration.

Keywords

Case Law, time-inconsistency, Statute Law, Rechtsprechung, Court Intervention, C79, D74, L14, Rechtsökonomik, ddc:330, Flexibilität, Case Law; Flexibility; Incomplete Laws; Precedents; Rigidity; Statute Law; Time-Inconsistency, case law, Time-Inconsistency, Statute Law, Case Law, Flexibility, Rigidity, Time-Inconsistency, Precedents, statute law, case law, flexibility, rigidity, time-inconsistency, precedents, Precedents., Statute law, Rechtsordnung, precedents, Statute Law, Case Law, Flexibility, Rigidity, Time-Inconsistency, Precedents., flexibility, Zeitkonsistenz, rigidity, Rigidity, D89, Common Law, K40, Court Intervention; Statute Law; Case Law; Rigidity; Time-Inconsistency; Precedents., Theorie, jel: jel:D89, jel: jel:K40, jel: jel:D74, jel: jel:C79, jel: jel:L14

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
12
Average
Top 10%
Top 10%
Green