Book (Oxford University Press), ch. 2: On Law, Politics, and Judicialization: Path Dependence, Precedent, and Judicial Power

Abstract

Given certain conditions, legal institutions will evolve in path dependent ways: that is, the social processes that link litigation and judicial lawmaking 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-a-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 I 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. Legal institutions are path dependent to the extent that how litigation and judicial rule-making proceeds, in any given area of the law at any given point in time, is fundamentally conditioned by how earlier legal disputes in that area of the law have been sequenced and resolved. The paper elaborates a model of adjudication in which institutional development and decisionmaking are linked through highly organized discursive choice-contexts, meso structures called 'argumentation frameworks'. Argumentation frameworks are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers; but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning. Sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: that is, they are path dependent. I conclude by addressing various implications of the argument which taken together define an agenda for research.