Jurisdictional Competition and the Evolution of the Common Law

55 Pages Posted: 7 Mar 2007 Last revised: 17 Dec 2014

Daniel M. Klerman

USC Gould School of Law

Date Written: March 1, 2007

Abstract

This paper explores the role jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees on a per case basis. As a result, judges had an incentive to hear more cases. The central argument of this article is that, since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs. Courts expanded their jurisdictions to give plaintiffs more choices, made their procedures cheaper, swifter and more effective, and developed legal doctrines which made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraints, most importantly Parliament and Chancery. This paper tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition. Starting in 1799, statutes took fees away from the judges. The hypothesis that competition induced a pro-plaintiff bias is tested by quantitative analysis of judicial decisionmaking before and after those statutes.

Suggested Citation

Klerman, Daniel M., Jurisdictional Competition and the Evolution of the Common Law (March 1, 2007). 74 University of Chicago Law Review 1179 (2007); University of Southern California CLEO Research Paper No. C07-4; University of Southern California Law Legal Studies Paper No. 07-2. Available at SSRN: https://ssrn.com/abstract=968701 or http://dx.doi.org/10.2139/ssrn.968701

Daniel M. Klerman (Contact Author)

USC Gould School of Law ( email )

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United States
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