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87 Tul. L. Rev. 787 (2012-2013)

handle is hein.journals/tulr87 and id is 835 raw text is: Path Dependence and Legal Development John Bell* Path dependence is an inportant explanation in comparadtive lan; but it also secognises that the law does develop by brakaig out ofthe mould cast by thepaSt. Path dependence affects not only the legal concepts that the law uses to solve problems, but whether the law wmll intervene in a problem area or not. Path dependence assumes that their is no ideal solution, but an equlibnurn can be found within aparticular society between the role oflaw and that ofother social institutions. The scope for change depends sigzificantly on the extent to which a particular legal approach is embedded within the legal system-how many parts of the law depend on it. Real embeddedness ivolves the way in which a particular rule or pactice connects to other parts of the law especially when it is underpinned by structural or organisational aspects of the system. I. INTRODUCTION........... .............. .....787 1I. PATH DEPENDENCE: THE EXAMPLE FROM WEIR ..... .....789 III. WHAT IS PATH DEPENDENCE? ......................791 A. Handling NewProblems.. ................ .....792 B Persistence ofInefficiency................ ......794 IV EMBEDDEDNESS.........................................797 V EMBEDDEDNESS IN INSTITUTIONS AND ORGANIZATIONS ...........799 A. Public Authority Liability........................ 800 B. Supervising Vulnerable Adults ............ .....805 VI. CONCLUSION............................................ 809 I. INTRODUCTION It is frequently asserted that civil law and common law systems proceed in different ways. Although societies and their values and economies may be very similar, their legal rules are very different, so the way in which lawyers brought up in each system approach problems is different.' One concept that is used to explain this problem is path dependence. This suggests that established legal approaches to the solution of issues will determine the way in which new situations or new problems are handled in the present and in the future. Legal development is explained not simply by the effect of social and economic pressures operating on the law from the outside at * © 2013 John Bell. Professor of Law, University of Cambridge. 1. Pierre Legrand, European Legal Systems Are Not Converging, 45 INT'L & COMP. L.Q. 52, 55-56 (1996). 787

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