Judicial versus "Natural" Selection of Legal Rules with an Application to Accident Law
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. But 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 U.S. Specifically, it attributes the persistence of negligence to its efficiency properties, despite its having been initially selected by judges for a different reason.
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