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Statute Law or Case Law?

By Luca Anderlini, Leonardo Felli and Alessandro Riboni


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.Statute Law, Case Law, Flexibility, Rigidity, Time-Inconsistency, Precedents.

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  12. (1992). Essays on the Nature of Law and Legal Reasoning. Berlin: Duncker and Humblot.
  13. Fernandez (2008): \Case Law vs. Statute Law: An Evolutionarty Comparison,"
  14. (1993). Foreward: The Justices of Rules and Standards,"
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  17. (2002). Investor Protection and Corporate Valuation,"
  18. (2000). Judicial Auditing,"
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  21. (1999). Legal Determinants of the Return on Equity," Stanford Law and Economics Olin Working Paper,
  22. (2004). Legal Regime and Business's Organizational Choice: A Comparison of France and the United States,"
  23. (2001). Markov Perfect Equilibrium I. Observable Actions,"
  24. (1956). Myopia and Inconsistency in Dynamic Utility Maximization,"
  25. (1972). Nordhaus' Theory of Optimal Patent Life: A Geometric Reinterpretation,"
  26. (1968). On Second-Best National Saving and GameEquilibrium Growth,"
  27. (2007). Optimal Discretion in the Application of Rules,"
  28. (2008). Persistent Court Corruption,"
  29. (1998). Power in a Theory of the Firm,"
  30. (1995). Problems with Rules,"
  31. (1990). Property Rights and the Nature of the Firm,"
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  33. (1999). Reinganum
  34. Rodr guez Mora (2007): \Political Commitment and Loss Aversion,"
  35. (1977). Rules Rather Than Discretion: The Inconsistency of Optimal Plans,"
  36. (1992). Rules versus Standards: An Economic Analysis,"
  37. Shavell (2002a): \Economic Analysis and the Law,"
  38. Shavell (2002b): Fairness Versus Welfare. Cambridge Massachusetts:
  39. (2006). Should Courts Always Enforce What Contracting Parties Write?,"
  40. (1995). The Appeals Process as a Means of Error Correction,"
  41. (1957). The Civil Law System. Englewood Clis:
  42. (1977). The Common Law Process and the Selection of Ecient Rules,"
  43. (1986). The Costs and Bene of Ownership: A Theory of Vertical and Lateral Integration,"
  44. (2008). The Evolution of a Legal Rule," Harvard University,
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  48. (1921). The Nature of the Judicial Process. New Haven:
  49. (1985). The Optimal Degree of Discretion in Monetary Policy,"
  50. (1990). The Problems of Jurisprudence.
  51. (1999). The Quality of Government,"
  52. (2007). The Quality of Law: Judicial Incentives, Legal Human Capital and the Evolution of Law," The Selected Works of Gillian
  53. (2005). The Theory of Corporate Finance.
  54. (1997). The Twin Faces of Judicial Corruption: Extortion and Bribery,"
  55. (1997). Vishny
  56. (1977). Why is the Common Law Ecient?,"

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