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Information, Litigation, and Common Law Evolution

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  • Keith N. Hylton
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    Abstract

    It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from 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 article 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. Copyright 2006, Oxford University Press.

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    Bibliographic Info

    Article provided by Oxford University Press in its journal American Law and Economics Review.

    Volume (Year): 8 (2006)
    Issue (Month): 1 ()
    Pages: 33-61

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    Handle: RePEc:oup:amlawe:v:8:y:2006:i:1:p:33-61

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    Cited by:
    1. Barbara Luppi & Francesco Parisi, 2012. "Litigation and legal evolution: does procedure matter?," Public Choice, Springer, vol. 152(1), pages 181-201, July.
    2. Hadfield, Gillian K., 2011. "The dynamic quality of law: The role of judicial incentives and legal human capital in the adaptation of law," Journal of Economic Behavior & Organization, Elsevier, vol. 79(1-2), pages 80-94, June.
    3. Keith Hylton & Sungjoon Cho, 2013. "Injunctive and reverse settlements in competition-blocking litigation," European Journal of Law and Economics, Springer, vol. 36(2), pages 243-269, October.
    4. Dari-Mattiacci, Giuseppe & Deffains, Bruno & Lovat, Bruno, 2011. "The dynamics of the legal system," Journal of Economic Behavior & Organization, Elsevier, vol. 79(1-2), pages 95-107, June.
    5. Miceli, Thomas J., 2010. "Legal change and the social value of lawsuits," International Review of Law and Economics, Elsevier, vol. 30(3), pages 203-208, September.

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