Rubin (economics and law, Emory U.) presents a selection of 22 of the most important articles on the evolution of efficient common law, published in a variety of legal journals between 1977 and 2006, and reproduced here in their original format. The text includes both articles that support the hypothesis of efficient evolution, and articles that argue the evolutionary process is not efficient. Prefaced by Rubin's introductory overview of the topic, the articles are organized into seven sections covering the originations of common law efficiency, the first critics, critical examinations looking explicitly at evolutionary processes, biased evolution, specific applications of the law, Hayekian (macro) efficiency, and a summary of the law. No subject index.
The efficiency of the common law hypothesis has generated a large bulk of literature in the last decades. The main argument is that there is an implicit economic logic to the common law; the doctrines in common law provide a coherent and consistent system of incentives which induce efficient behavior. We start by observing that if the common law is overall evolutionarily efficient, we are left with no explanation for the important doctrinal differences across common law jurisdictions. The observation is more striking if we keep in mind that presumably the de jure initial condition was the same, namely English law. This paper assesses the efficiency of the common law hypothesis to detect the possible explanations for those main differences. If local determinants shape the common law differently, the literature needs to address these particularities that have been largely ignored. The consequence is that there is probably no single efficient outcome, thus undermining the "one-size-fits-all" theory of the legal origins literature.
This book addresses two countervailing challenges to theory and policy in law and economics. The first is the rise of legal origins theory, which denies the comparative law view of convergence between common law and civil law by the assertion of an economic superiority of common law. The second is the series of economic crises in the very financial markets on which that assertion was based. Both trends unsettled certainties about the rule of law and institutional economics. Meeting legal origins theory in its main areas of political science, sociology and economics, the book extends the interdisciplinary reach to neglected aspects of comparative law, legal history, dynamic econometric analysis and "quasi-natural experiments" with counterfactual evidence of different institutional regimes in divided countries. These combined methodological tools make tests of the economic impact of different legal origins much more reliable. This is shown for developed and newly industrialized countries as well as developing, transforming and emerging countries with or without financial center advantage, affected or not by financial crises. The Asian financial crises and the American subprime crisis have been, or could have been resolved using the resources of common law or civil law. These cases and data on access to justice in Africa, Asia and Latin America reveal the problem of substantive law remaining "law on the books" without efficient procedural rules and judicial structures. The single most striking common law-civil law divide is that lawyer-dominated common law procedure is slower and costlier than judge-managed civil law procedure. Countries as diverse as the Netherlands, Japan, and China show functional interaction between culture and law in legal reforms. Such interaction can reduce the occurrence of legal disputes as well as facilitate their resolution. It can use economic crises as catalysts for legal reforms or rely on regional integration, and it should replace the discredited method of legal "transplants" by sustained dialogue between legal advisors and all actors involved in legal reforms.
DigiCat Publishing presents to you this special edition of "The Common Law" by Oliver Wendell Holmes. DigiCat Publishing considers every written word to be a legacy of humankind. Every DigiCat book has been carefully reproduced for republishing in a new modern format. The books are available in print, as well as ebooks. DigiCat hopes you will treat this work with the acknowledgment and passion it deserves as a classic of world literature.
Historical Foundations of the Common Law provides a general overview of the development of the common law. The book is comprised of 14 chapters that are organized into four parts. The first part deals with the institutional background and covers the centralization of justice; the institutions of the common law; and the rise of equity. The second part deals with land properties, while the third part talks about legal obligations. The last part details criminal administration and law. The text will be of great use to individuals who have an interest in the development of the common law.
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.
