Self-Organizing Legal Systems: Precedent and Variation in Bankruptcy

Abstract:     
Models of legal ordering are frequently hierarchical. These models do not explain two prominent realities: (1) variation in the content of a legal system, and (2) patterns of non-hierarchical ordering that we observe. As a supplement to hierarchical explanations of legal order, this Article draws on physical and social science research on complex systems to offer a self-organizing model. The self-organizing model focuses on variation in the content of legal systems and attempts to explain the relationship between that variation and patterns of ordering. The self-organizing model demonstrates that variation and ordering are not opposite categories, but rather constitute one continuous phenomenon.

Working with bankruptcy data and institutions, this Article describes self-organizing structures as overlapping networks of legal and extra-legal actors, and self-organizing dynamics as involving the twin processes of form innovation and norm emergence. This Article adduces empirical evidence (including a substantial case study and statistical analysis of a quantitative database) suggesting that bankruptcy is a self-organizing system. Finally, this Article suggests that self-organization may state a general theory of trial court behavior, and that the self-organizing model may illuminate legal research in areas such as discretion, doctrine, and legal change.

Number of Pages in PDF File: 80

Keywords: bankruptcy, complex systems, self-organization, empirical, norms

Accepted Paper Series