Gilbert on the Law and Economics of Entrenchment

Michael D. Gilbert (University of Virginia School of Law) has posted The Law and Economics of Entrenchment (Georgia Law Review, Forthcoming) on SSRN.  Here is the abstract: Should law respond readily to society’s evolving views, or should it remain fixed? This is the question of entrenchment, meaning the insulation of law from change through supermajority rules and other mechanisms. Entrenchment stabilizes law but frustrates democratic majorities. Scholars have long studied this tension but made little progress in resolving it. This Essay considers the problem from the perspective of law and economics. Three arguments follow. First, majority rule can systematically harm society — even when voters are rational (i.e., not passionate) and no intense minority is present. This is because of a collective action problem created by transition costs. Second, entrenchment is unnecessary when bargaining is easy but offers a second-best solution when bargaining is…

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