On Law, Politics, and Judicialization

By Martin Shapiro; Alec Stone Sweet | Go to book overview

Path Dependence, Precedent, and Judicial Power

Alec Stone Sweet

Given certain conditions, legal institutions will evolve in path dependent ways: that is, the social processes that link litigation and judicial law-making will exhibit increasing returns. Once under way, these processes will build the discursive techniques and modes of decision-making specific to the exercise of judicial power; they will enhance the centrality of judicial rule-making vis-à-vis other processes; and they will, periodically but routinely, reconfigure those sites of governance constituted by rules subject to intensive litigation.

The paper follows in a line of research on how new legal systems emerge, mutate, and mature, and with what political consequences (for example, Stone 1992a ; Stone Sweet 1997 ; 2000). The concepts of path dependence and increasing returns have at times been deployed and given empirical content (especially Stone Sweet, Chapters 1 and 4 , this volume; Stone Sweet and Caporaso 1998a); nonetheless, they were used to complement other theoretical materials and priorities, and were left under-theorized. Here I provide explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers.

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On Law, Politics, and Judicialization
Table of contents

Table of contents

  • On Law, Politics, and Judicialization iii
  • Acknowledgements vii
  • Contents ix
  • List of Figures x
  • 1: Law, Courts, and Social Science 1
  • Political Jurisprudence 19
  • Judicialization and the Construction of Governance 55
  • Appendix 88
  • 2: Judicial Law-Making and Precedent 90
  • Towards a Theory of Stare Decisis 102
  • Path Dependence, Precedent, and Judicial Power 112
  • 3: Constitutional Judicial Review 136
  • The Success of Judicial Review and Democracy 149
  • Constitutional Politics in France and Germany 184
  • 4: Testing, Comparison, Prediction 209
  • The Giving Reasons Requirement 228
  • Appendix 290
  • 5: Judges and Company 292
  • Globalization of Freedom of Contract 296
  • Islands of Transnational Governance 323
  • 6: Abstract Review and Judicial Law-Making 343
  • References 376
  • Index 407
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