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Evolution of the Common Law and the Emergence of Compromise

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  • Whitman, Douglas Glen

Abstract

In a system of judge-made law, each judge who decides a case in a particular area of law may, in principle, choose to depart from precedent in favor of another rule. This paper examines the question of whether such a system will produce constant oscillation among different legal rules or will instead produce a single rule that potential litigants can rely upon when choosing their behavior. Using a model of the legal process that treats judges as self-interested agents maximizing their private and reputation-based utility, this article derives conditions under which the common-law process will produce convergence on a single rule rather than oscillation between rules. The article also examines the circumstances in which the introduction of a compromise rule can resolve a problem of oscillation between rules. Copyright 2000 by the University of Chicago.

Suggested Citation

  • Whitman, Douglas Glen, 2000. "Evolution of the Common Law and the Emergence of Compromise," The Journal of Legal Studies, University of Chicago Press, vol. 29(2), pages 753-781, June.
    • Handle: RePEc:ucp:jlstud:v:29:y:2000:i:2:p:753-81
    DOI: 10.1086/468092
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    Cited by:

    1. Ojo, Marianne, 2015. "Harmonisation du Hayek et Posner: Posner, Hayek et l'analyse économique du droit [Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law]," MPRA Paper 65190, University Library of Munich, Germany.
    2. Gilat Levy, 2005. "Careerist Judges," RAND Journal of Economics, The RAND Corporation, vol. 36(2), pages 275-297, Summer.
    3. Whitman, Douglas Glen, 2005. "The Role of Panels in Enhancing Legal Predictability," International Review of Law and Economics, Elsevier, vol. 25(4), pages 541-555, December.
    4. Baumann, Florian & Fagan, Frank, 2023. "When more isn’t always better: The ambiguity of fully transparent judicial action and unrestricted publication rules," International Review of Law and Economics, Elsevier, vol. 75(C).
    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.
    6. Rustam Romaniuc, 2012. "Judicial Dissent under Externalities and Incomplete Information," Czech Economic Review, Charles University Prague, Faculty of Social Sciences, Institute of Economic Studies, vol. 6(3), pages 209-224, October.
    7. Ojo, Marianne, 2015. "Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law," MPRA Paper 64780, University Library of Munich, Germany.

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