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The Evolution of a Legal Rule

Author

Listed:
  • Anthony Niblett
  • Richard A. Posner
  • Andrei Shleifer

Abstract

Efficient legal rules are central to efficient resource allocation in a market economy. But the question whether the common law actually converges to efficiency in commercial areas has remained empirically untested. We create a data set of 461 state court appellate decisions involving the economic loss rule in construction disputes and trace the evolution of this law from 1970 to 2005. We find that the law did not converge to any stable resting point and evolved differently in different states. Legal evolution is influenced by plaintiffs' choice of which legal claims to make, the relative economic power of the parties, and nonbinding federal precedent.

Suggested Citation

  • Anthony Niblett & Richard A. Posner & Andrei Shleifer, 2010. "The Evolution of a Legal Rule," The Journal of Legal Studies, University of Chicago Press, vol. 39(2), pages 325-358.
    • Handle: RePEc:ucp:jlstud:doi:10.1086/652908
    DOI: 10.1086/652908
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    References listed on IDEAS

    as
    1. Nicola Gennaioli & Andrei Shleifer, 2007. "The Evolution of Common Law," Journal of Political Economy, University of Chicago Press, vol. 115(1), pages 43-68.
    2. Dari-Mattiacci, Giuseppe & Schafer, Hans-Bernd, 2007. "The core of pure economic loss," International Review of Law and Economics, Elsevier, vol. 27(1), pages 8-28, March.
    3. Theodore Eisenberg & Henry S. Farber, 1996. "The Litigious Plaintiff Hypothesis: Case Selection and Resolution," Working Papers 743, Princeton University, Department of Economics, Industrial Relations Section..
    4. Kessler, Daniel & Meites, Thomas & Miller, Geoffrey P, 1996. "Explaining Deviations from the Fifty-Percent Rule: A Multimodal Approach to the Selection of Cases for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 233-259, January.
    5. R. H. Coase, 2013. "The Problem of Social Cost," Journal of Law and Economics, University of Chicago Press, vol. 56(4), pages 837-877.
    6. Hans-Bernd Schäfer, 2022. "Law and Economics of Pure Economic Loss in Tort," India Studies in Business and Economics, in: Saiyed Raza Hashim & Rahul Mukherji & Brajaraja Mishra (ed.), Perspectives on Inclusive Policies for Development in India, pages 65-77, Springer.
    7. George L. Priest & Benjamin Klein, 1984. "The Selection of Disputes for Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 13(1), pages 1-56, January.
    8. Gomez, Fernando & Schafer, Hans-Bernd, 2007. "The law and economics of pure economic loss: Introduction to the special issue of the International Review of Law and Economics," International Review of Law and Economics, Elsevier, vol. 27(1), pages 1-7, March.
    9. Parisi, Francesco & Palmer, Vernon Valentine & Bussani, Mauro, 2007. "The comparative law and economics of pure economic loss," International Review of Law and Economics, Elsevier, vol. 27(1), pages 29-48, March.
    10. Segal, Jeffrey A., 1984. "Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-1981," American Political Science Review, Cambridge University Press, vol. 78(4), pages 891-900, December.
    11. Goldberg, Victor P, 1994. "Recovery for Economic Loss following the Exxon Valdez Oil Spill," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 1-39, January.
    12. Shavell, Steven, 1996. "Any Frequency of Plaintiff Victory at Trial Is Possible," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 493-501, June.
    13. George, Tracey E. & Epstein, Lee, 1992. "On the Nature of Supreme Court Decision Making," American Political Science Review, Cambridge University Press, vol. 86(2), pages 323-337, June.
    14. Richards, Mark J. & Kritzer, Herbert M., 2002. "Jurisprudential Regimes in Supreme Court Decision Making," American Political Science Review, Cambridge University Press, vol. 96(2), pages 305-320, June.
    15. Eric A. Posner, 2010. "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 26(2), pages 290-336.
    16. Robert Cooter & Lewis Kornhauser & David Lane, 1979. "Liability Rules, Limited Information, and the Role of Precedent," Bell Journal of Economics, The RAND Corporation, vol. 10(1), pages 366-373, Spring.
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    More about this item

    JEL classification:

    • 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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