Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

2006

ISSN

1465-7252

Publisher

Oxford University Press

Language

en-US

Abstract

It is common in the legal academy to describe trends in judicial decisions leading to new common law rules as the result of conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This paper presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the better informed litigant whose case is also meritorious. Although the model does not suggest an unambiguous trend toward efficient legal rules, it does show how private information from litigants becomes embodied in common law, an important part of the theory of efficient legal rules.

Comments

Boston University School of Law Working Paper Series, Law and Economics Working Paper No. 05-07

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