INFORMATION, LITIGATION, AND COMMON LAW EVOLUTION |
Keith N. Hylton
Boston University School of Law Working Paper 05-07
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
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Keith N. Hylton Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
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