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Judges, Lawyers, and a Predictive Theory of Legal Complexity

35 Pages Posted: 25 May 2008 Last revised: 21 Jun 2008

Benjamin H. Barton

University of Tennessee College of Law

Date Written: June 2008

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.

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

JEL Classification: D72, D73, K40, K41

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: https://ssrn.com/abstract=1136372 or http://dx.doi.org/10.2139/ssrn.1136372

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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