Gordon Tullock's Critique of the Common Law

Abstract

This article is part of a symposium on the work of Gordon Tullock, to be held in connection with the presentation to Tullock of the Lifetime Achievement Award of the Fund for the Study of Spontaneous Orders at the Atlas Research Foundation, for his contributions to the study of spontaneous orders and methodological individualism. This contribution to the symposium studies Tullock's critique of the common law.

Tullock critiques two specific aspects of the common law system: the adversary system of dispute resolution and the common law process of rulemaking, contrasting them with the inquisitorial system and the civil law systems respectively. Tullock's general critique is straightforward: litigation under the common law system is plagued by the same rent-seeking and rent-dissipation dynamics that Tullock famously ascribed to the process of legislative rent-seeking. This article reviews Tullock's theoretical critique and empirical studies on both issues. The article concludes that Tullock's critique of the adversary system appears to be stronger on both theoretical and empirical grounds than his critique of the common law system of rulemaking.

Keywords: Tullock, Posner, law and economics, economics of judicial procedures, adversary system, inquisitorial system, civil law, common law, rent-seeking

JEL Classification: B31, D72, K10, K12, K13, K41