Information, Litigation, and Common Law Evolution

34 Pages Posted: 25 Apr 2005

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

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It is common in the legal academy to describe trends in judicial decisions leading to new common law rules as the result of 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 paper 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.

Keywords: common law evolution, common law rules, theory of litigation, litigation, torts, litigation procedure, decisions biasing the legal standard, theory of efficient legal rules

JEL Classification: K00, K13, K42

Suggested Citation

Hylton, Keith N., Information, Litigation, and Common Law Evolution. American Law and Economics Review, Vol. 8, No. 1, pp. 33-61, 2006, Boston Univ. School of Law Working Paper No. 05-07, USC CLEO Research Paper No. C05-9, Available at SSRN: or

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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