Information, Litigation, and Common Law Evolution

Posted: 29 Feb 2008  

Keith N. Hylton

Boston University - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2006

Abstract

It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from 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 article 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.

Suggested Citation

Hylton, Keith N., Information, Litigation, and Common Law Evolution ( 2006). American Law and Economics Review, Vol. 8, Issue 1, pp. 33-61, 2006. Available at SSRN: https://ssrn.com/abstract=1095564 or http://dx.doi.org/10.1093/aler/ahj001

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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Boston, MA 02215
United States
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