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Review of Law & Economics

Editor-in-Chief: Parisi, Francesco

Ed. by Cooter, Robert D. / Gómez Pomar, Fernando / Jacobi, Tonja / Kornhauser, Lewis A. / Ulen, Thomas

3 Issues per year

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Legal Durability

Omri Ben-Shahar1

1Law and Economics, University of Michigan

Citation Information: Review of Law & Economics. Volume 1, Issue 1, Pages 15–53, ISSN (Online) 1555-5879, DOI: 10.2202/1555-5879.1003, April 2005

Publication History

Published Online:
2005-04-01

This paper develops a framework to study the effects of the durability of legal allocation decisions, such as trial outcomes, regulatory enactments and property entitlements. For a party favored by the legal allocation, a more durable decision is also more costly to secure, ex-ante. Thus, it is not the greater durability of the allocation that determines whether the “winner” is better-off, but other factors that are affected by the durability attribute, such as the cost of securing a favorable outcome and the ability of contesting parties to affect this cost. The paper develops conditions under which greater durability is irrelevant, or even undesirable to the winner. The analysis is applied to shed light on durability doctrines relating to trial outcomes (e.g., res judicata and double jeopardy), rules and regulations (e.g., transition relief when rules change), entitlements (e.g., adverse possession and statutes of limitations), and marriages.

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