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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. 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.
    2. 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.
    3. Ojo, Marianne, 2015. "Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law," MPRA Paper 64780, University Library of Munich, Germany.
    4. 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.
    5. Gilat Levy, 2005. "Careerist Judges," RAND Journal of Economics, The RAND Corporation, vol. 36(2), pages 275-297, Summer.
    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. 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).

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