Abstract

http://ssrn.com/abstract=1136372
 
 

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Judges, Lawyers, and a Predictive Theory of Legal Complexity


Benjamin H. Barton


University of Tennessee College of Law

June 2008

University of Tennessee Legal Studies Research Paper No. 31

Abstract:     
This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious. The Article uses the law of standing as a case study.

Number of Pages in PDF File: 35

Keywords: legal complexity, law and economics, public choice theory, new institutionalism, judicial behavior, standing

JEL Classification: D72, D73, K40, K41

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Date posted: May 25, 2008 ; Last revised: June 21, 2008

Suggested Citation

Barton, Benjamin H., Judges, Lawyers, and a Predictive Theory of Legal Complexity (June 2008). University of Tennessee Legal Studies Research Paper No. 31. Available at SSRN: http://ssrn.com/abstract=1136372 or http://dx.doi.org/10.2139/ssrn.1136372

Contact Information

Benjamin H. Barton (Contact Author)
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996
United States
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