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Judicial versus ‘natural’ selection of legal rules with an application to accident law

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  • MICELI, THOMAS J.

Abstract

Law and economics scholars argue that the common law evolves toward efficiency. Invisible-hand theories suggest that the law is primarily driven by a selection process whereby inefficient laws are litigated more frequently than efficient laws, and hence are more likely to be overturned. However, the preferences of judges also necessarily affect legal change. This paper models the interaction of these two forces to evaluate the efficiency claim, and then applies the conclusions to the evolution of accident law in the United States beginning in the 19th century. Specifically, it attributes the persistence of negligence to its efficiency properties, despite its having been initially selected by judges for a different reason. The paper relates legal evolution to biological evolution by employing the concepts of natural and artificial selection, and the more recent concept of exaptation.

Suggested Citation

  • Miceli, Thomas J., 2012. "Judicial versus ‘natural’ selection of legal rules with an application to accident law," Journal of Institutional Economics, Cambridge University Press, vol. 8(2), pages 143-159, June.
    • Handle: RePEc:cup:jinsec:v:8:y:2012:i:02:p:143-159_00
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    Cited by:

    1. Grajzl, Peter & Murrell, Peter, 2016. "A Darwinian theory of institutional evolution two centuries before Darwin?," Journal of Economic Behavior & Organization, Elsevier, vol. 131(PA), pages 346-372.
    2. Thomas J. Miceli, 2011. "The Use of Economics for Understanding Law: An Economist's View of the Cathedral," Working papers 2011-25, University of Connecticut, Department of Economics.

    More about this item

    JEL classification:

    • B52 - Schools of Economic Thought and Methodology - - Current Heterodox Approaches - - - Historical; Institutional; Evolutionary; Modern Monetary Theory;
    • K13 - Law and Economics - - Basic Areas of Law - - - Tort Law and Product Liability; Forensic Economics
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process

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