Complexity, the Generation of Legal Knowledge, and the Future of Litigation
33 Pages Posted: 28 Apr 2013 Last revised: 1 May 2013
Date Written: April 26, 2013
The central problem of rationality is to tame and domesticate the overwhelming complexity the human mind faces in its efforts to survive and thrive in a complex, unpredictable, and hostile universe. Much of the history of the human race is essentially the story of its expanding capacity to do just that, and the survival benefits that has bestowed on the species. Legal systems in general are part of the story of taming complexity, and the modern American legal system in particular an important part. In an effort to understand the nature of legal systems, much legal scholarship, like the scientific endeavors in many other disciplines, engages in reductivist efforts that simplify and then tries to explain or engage in normative efforts about a certain set of phenomena, typically through a priori reasoning. An outstanding and enormously influential example is economic analysis of law. Two recent publications of this kind particularly pertinent to The Future of Litigation are the extraordinary efforts of Louis Kaplow to explain, justify, and reform the law of burden of proof and essentially the entire judicial process. In contrast to such reductivist efforts is the methodology of Stephen Yeazell, which might be called “the reformed judicial process school.” The reformed judicial process school embraces rather than suppresses the complexity of the matter under investigation, in this case the judicial system, and employs whatever tools of analysis seem most appropriate to the task at hand, including careful doctrinal exegesis, the application of microeconomics, or empirical research. The result (whatever Yeazell or others might have intended) is careful, bottom-up empiricism rather than top-down prescription. Each approach has its utility and limitations. In the effort to advance knowledge of the operation of the legal system, work like Yeazell’s succeeds better than reductivist approaches. This is significantly explained by Yeazell’s recognition of the implications that the legal system is complex and dynamic, and the failure of the legal economists in that regard. In predicting The Future of Litigation, the work product of the reformed judicial process school is more likely to be influential than that of standard microeconomic theorizing. Indeed, because Kaplow's work ignores the significance of complexity, it ends up with prescriptions that have essentially infinite transaction costs. The advantage of the Yeazell approach is particularly evident in the pleading area that has been thrown into turmoil by the recent Supreme Court decisions in Iqbal and Twombly.
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