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.