Encyclopedia of Law & Economics - 9200 JUDGE MADE LAW



Paul H. Rubin

Department of Economics, Emory University

© Copyright 1998 Paul H. Rubin


1. Introduction
2. Efficiency of Common Law
3. Utility Maximization
4. Evolutionary Model
5. Multi-Judge Interactions
Bibliography on Judge Made Law (9200)


A major positive claim in the law and economics literature, due first to Posner,is that the common law is economically efficient. However, mechanisms toexplain this putative efficiency are lacking. Posner's hypothesis is that judgesgain utility from efficient decisions, and are constrained so that other decisioncriteria are limited. Evolutionary models of the law were devised to provideanother mechanism for such efficiency, but these models, while proving veryuseful for some purposes, have not achieved this goal. Indeed, there are nowevolutionary models of legal change driven by rent seeking by lawyers andothers which lead to inefficient results. There is also a literature on multi-judgeinteractions, showing conditions under which such interactions will or will notlead to consistent results.

'At the heart of economic analysis of law is a mystery that is also anembarrassment: how to explain judicial behavior in economic terms...'Posner (1993, p. 2).

JEL classification: K00, K41

Keywords: Common Law, Judges, Legal Evolution, Legal Efficiency, Efficiencyof the Common Law

1. Introduction

As the excerpt beginning this section indicates, explanation of the behavior ofjudges is one of the most important but also most difficult problems facing lawand economics scholars. This is because judicial opinions are the result of utilitymaximizing behavior and economists are unable to specify the details of judges'(or anyone else's) utility functions. Consequently, it has proven difficult todevelop a theory that explains why judges make the decisions that we observe,though, as we discuss below, many have tried. Because of the difficulty ofexplaining decisions in terms of utility functions, there have also been attemptsto use evolutionary models to explain outcomes. In these models, the form of lawis due to factors involving wealth maximizing behavior of actors in the legalprocess such as litigants or attorneys, and judges play a minor role.

The structure of this entry is as follows: I first consider briefly argumentsregarding the efficiency of common law. I then discuss utility maximizing modelsof judicial behavior. I next then consider the evolutionary models. The followingsection discusses models of multi-judge behavior.

2. Efficiency of Common Law

A basic question for law and economics is the efficiency of law. Hayek, (1960)and Hayek (1973), although writing before the law and economics movement andwriting from another perspective, had argued that common or judge made lawwas better than statute law; see Christinasen (1990) for an attempt to reconcileHayekian arguments with law and economics. More recently, Posner (1992) hasof course argued often and forcefully that the common law is efficient. Hisarguments are based on examination of particular legal doctrines. The difficultyof this method is that often the conclusion regarding the efficiency of aparticular rule depends on unmeasured transactions costs of various sorts; ifPosner's intuition about relative magnitudes of costs is incorrect, then doctrineshe claims are efficient may not be so. Nonetheless, his analysis has been theintellectual spark behind the growth of law and economics, and questions ofefficiency of the sort he was the first to raise have dominated the literature.Much of this literature may be considered as detailed attempts to answer thepositive efficiency question first posed by Posner, and much of the rest aims atderiving normative conclusions as to what is efficient.

Others are less certain that common law is efficient. Tullock (1971) andTullock (1980) has long argued that the English common law process is lessefficient than Continental processes. Rizzo (1980a) and Rizzo (1980b) argues froman Austrian perspective that the amount of information needed for judges toachieve efficiency is excessive, although Rubin (1980) in a critique argues thatRizzo's criticism might apply to efficiency in all of economics, not merely in lawand economics. Aranson (1992) argues that it is impossible for judges to seekefficiency because the calculations required are equivalent to those required tomake central planning work. Hadfield (1992) has argued that because judges seeonly a biased sample of potential cases, depending on the rules in existence, itis impossible for judges to move towards efficiency, even if they desire to do so.

Much of the literature in law and economics consists of attempts to examineparticular legal doctrines and attempt to determine if they are efficient. (Much ofmy own work is of this type; see for example Rubin (1983).) This is method ofanalysis is fundamentally different from efficiency analysis in other branches ofeconomics. There, a process (market competition) is postulated and it is shownthat the process leads to efficient outcomes. Economists do not generallyexamine consumers to see if they are equating ratios of marginal utilities toprices, or firms to see if they are charging marginal cost. Rather, the process bywhich outcomes are generated is shown to lead to efficiency. It is for this reasonthat many economists are uncomfortable with the efficiency arguments of lawand economics. Nonetheless, because this is the standard method in law andeconomics, any analysis of the efficiency of any particular body of law can beconsidered as evidence for or against Posner's hypothesis. If some law is foundefficient, then this is evidence for the hypothesis. If some law is foundinefficient, or if there are proposals for reform, then this is evidence against thehypothesis. In this sense, all of law and economics is aimed at testing thisfundamental hypothesis.

Scholars are of course aware of this difficulty, and have sought to identifya process that would lead to efficiency. The two candidates are utilitymaximization by judges and evolutionary models. I discuss each. As we will see,there is no definitive demonstration in the literature of a mechanism that wouldlead to efficiency. This has led many to conclude that the law is not so efficientas Posner believes.

3. Utility Maximization

The first argument regarding utility maximization by judges was in Posner (1992);first edition, 1973. The argument (elaborated in Posner (1993)) is that judges areso insulated from personal factors and from interest group and other pressuresthat the only remaining decision factor is efficiency. The only other candidateis income redistribution, and judges lack the tools needed for suchredistribution. This explanation was and is not terribly convincing to economistsbecause it ultimately relies on judicial tastes for efficiency and economists prefernot to explain behavior on this basis.

There have been some attempts to model judicial utility functions in terms ofeconomically relevant and observable variables. The first such effort was byHiggins and Rubin (1980). They argued that promotion to a higher position wasan element of judicial utility functions, that promotion was more likely if thejudge was reversed less, and that the value of promotion was reduced as thejudge became older. However, in their sample they were unable to find anyrelation between age or any other factor and reversal, and only a weak relationbetween reversal and promotion.

In two articles, Cohen continued to examine promotion possibilities forfederal judges. His argument was that if the Justice Department recommendeda judge, then promotion was more likely. In Cohen (1991) he examined voting onthe constitutionality of the U.S. Sentencing Commission and found that judgesvoting for constitutionality were more likely to be promoted; the JusticeDepartment favored this position. In Cohen (1992) he found that judges whoimposed more severe antitrust sanctions, again in line with the desires of theDepartment, were more likely to be promoted. Thus, there is evidence for normalutility maximization by judges. The problem is that it is difficult to see how theseresults generalize to explain other types of decisions, including common lawdecisions. Macey (1994) has argued that many rules of procedure are aimed atmaximizing judicial utility - for example by emphasizing procedure, where judgeshave a comparative advantage, over substance, where they do not.

Landes and Posner (1980) examined differences between state court judgesand federal court judges. Their hypothesis was that since Federal judges arepaid more and have life tenure, we would expect higher quality people to occupythese positions and write better opinions. Their measures of quality had to dowith citations to opinions as discussed in Landes and Posner (1976) and withuse of opinions in legal casebooks. Except for the last measure, they found littledifference. Other variables such as age and the political party appointing thejudge also had little influence. Ashenfelter et al. (1995) examined the extent towhich judicial decisions are influenced by political party appointing the judgeand other elements of the judges' personal background. They find little or noinfluence. Thus, if we believe that these characteristics influence the judges'utility function, this may be taken as an argument that this aspect of utility haslittle impact.

It is apparent that there is little evidence regarding the effect of utilitymaximization on the mass of case outcomes. This is clearly an area for futureresearch.

4. Evolutionary Models

The evolutionary models are attempts to explain judicial behavior without resortto utility functions. Initially, these models aimed at explaining Posner's putativeobservation that the common law was efficient. It is fair to say that the modelsfailed in this endeavor, perhaps because the law is not so efficient as Posnerargued. Nonetheless, these models have had an important impact on theliterature because they have called attention to forces other than judicialpreferences in explaining the law. The evolutionary models are ultimately basedon the model of the litigation process first set forth by Landes (1971).

The first paper applying an evolutionary model to the common law wasRubin (1977). Following Landes (1971) Rubin argued that most cases are settled,rather than litigated, and that it is only litigated cases that can lead to legalchange. Cases are settled when the expected value to the plaintiff of a case isless than the expected cost to the defendant, which is generally true if stakes aresymmetric. However, inefficient laws can sometimes create asymmetric stakesbecause the inefficiency means that there are deadweight losses than cannot bebargained away in the settlement process. That is, an inefficient rule creates aloss to one party that is greater than the gain to the other because of futurestakes in similar type cases. Thus, litigation becomes more likely when rules areinefficient, and so inefficient rules are subject to greater selection pressure, andmore likely to be overturned. (Note that this model, like many of its successors,depends on parties having ongoing interests in disputes of a certain sort, ratherthan merely in the matter at hand.)

Following this initial contribution were several extensions and modifications.Priest (1977) argued that inefficient rules generated larger stakes and so weremore likely to be litigated, again subjecting them to increased selection pressure.Goodman (1979) argued that efficient precedents were worth more to parties whowould benefit than inefficient precedents were worth to their beneficiaries, andthat parties to whom a decision was worth more would spend more litigating andso would be more likely to win. In other words, efficient precedents were morelikely to win in litigation and survive than were inefficient precedents. Katz(1988) expanded on this notion in the context of presenting a model of litigationexpenditures. Terreborne (1981) also presented a model of efficient legalevolution.

Other scholars began critically examining these models. Landes and Posner(1979) in a symposium paper published in the Journal of Legal Studies arguedthat the earlier models had erred by modeling precedent as an all or nothingissue, when the proper question was whether a precedent was stronger orweaker. That is, litigation might strengthen or weaken a precedent withoutoverturning it completely. Thus a party with an interest in overturning aninefficient precedent would also have to consider the possibility that litigationcould strengthen as well as weakening the precedent. This consideration greatlyweakens the evolutionary pressures for efficiency. Parsons (1983) combinedPriest's point (that inefficient precedents would lead to increasing litigation) withthe Landes and Posner point (that precedents that were litigated might becomeentrenched) to argue that there is a tendency for the common law to become'reckless' - to favor rules that inefficiently lead to increased accidents.

Cooter et al (1979) presented a model in which movement towards efficiencycould only occur if judges sought such a movement. In a more elaborateexamination of the issue, Cooter and Kornhauser (1980) present a complexevolutionary model in which there are some tendencies towards efficiency, butin which both efficient and inefficient rules will be observed at any time. Thismodel, and alternative definitions and implications of efficiency, are discussedin Kornhauser (1980). Von Wagenheim (1993) presents a model with similarresults.

Hirshleifer (1982), building on Rubin's discussion of inefficiency when stakesin precedent are asymmetric, provided what may be the most useful andinfluential criticism of the evolutionary models. Recall that in the original Rubin(1977) model and in some others, including Goodman (1979) and Landes andPosner (1979) evolutionary forces moved the law towards efficiency only if theparty with an interest in efficiency had an ongoing interest in the form of he law.Hirshleifer generalized this point to show that the law could come to favorwhichever party could most easily organize and mobilize resources for litigationof unfavorable precedents. This movement would be independent of efficiency.Rubin (1982) uses this point to argue that common law was more like statute lawthan many want to admit: interest groups could use either common or statute lawto achieve their goals. He argued that the apparent efficiency of the common lawwas because most common law was developed at a time when organization ofinterest groups was expensive, and that more recently both common and statutelaw have been subject to interest group pressures. Crew and Twight(1990)expanded on this point and found common law less subject to rent seekingthan statute law. Rowley and Brough (1987) find that contract and propertymight be expected to be efficient, but not tort. Bailey and Rubin (1994) haveextended this theme in a formal model of the influence of interest groups on thelaw, and Rubin and Bailey (1994) have shown that plaintiffs' attorneys have beenresponsible for the shape of modern tort law, using an evolutionary mechanismto shape the law. An interesting question worthy of future exploration is theextent to which other interest groups have found litigating for precedentworthwhile.

Heiner (1986) explains stare decisis and other features of the law as a resultof human imperfect decision making. Because attempt to achieve optimality ineach decision might lead to erroneous decisions in many cases, it may be moreefficient to rely on rather simple rules that minimize the potential costs of error.

An interesting set of hypotheses regarding legal evolution is in Roe (1996).Roe argues that the notion of evolution towards efficiency is an importantdeterminant of legal form, but it is not the only determinant. He incorporatesthree subsidiary notions into an efficiency framework - the importance of initialconditions (borrowed from chaos theory), path dependence, and evolutionaryaccidents. The result of these processes would be that laws would be well butnot perfectly adapted. However, while these notions are interesting, as Roehimself admits, they do not as of yet provide refutable hypotheses. It would beinteresting to see if these propositions can be generalized to provide someimplications.

What can we say about the evolutionary models? They have not succeededin the original task of providing an explanation for common law efficiency.However, by demonstrating the difficulty of achieving this goal, they havehelped understand when the law may be efficient and when it is likely not to beefficient. Moreover, an important component of the evolutionary models wastheir focus on the litigation decision as driving legal evolution. Other models oflegal evolution, both economic and non-economic, either leave mechanisms forevolution unspecified or assume that the preferences of judges are the drivingforces. The economic models were the first to focus on the motives of litigants,realizing that judges can decide only those cases that come before them.

As Elliott (1985, p. 71), in an important study of the history of evolutionarymodels, indicates: 'Moreover, the economic school of evolution has broadenedour view of the legal system to include the role of litigants, as well as judges, inmaking law.' The literature associated with Priest and Klein (1984) on selectivitybias in case selection is a result of the focus on litigants' decisions, which hascome out of the evolutionary models; for a discussion, see Priest (1980). (For ananalysis of theories of legal evolution from 1880-1940 (which thus omits analysisof the economic theories) see Hovenkamp (1985).)

Aranson (1986) summarizes the assumptions of several of the evolutionarymodels. He shows that many combinations of assumptions have not beenexamined, and thus provides clues for further research. There is much usefulresearch to be done on evolutionary models of legal change.

5. Multi-Judge Interactions

Matters become more complex when more than one judge is involved in adecision or sequence of decisions. Multiple judges may be involved because ajudicial panel may consist of more than one judge; because different judges mayhear similar cases at different times; or because the appellate process mayinvolve judges at different levels of a judicial hierarchy hearing the same case.

One issue that appears when panels of judges hear a matter is the potentialfor inconsistency. Easterbrook (1982) was the first to point out that the Arrowtheorem (which shows that there is no way of aggregating preferences that isnot subject to some flaw, and that, for example, majority voting can lead tocycles: A defeats B, B defeats C, C defeats A) also applies to judicial voting; seealso Easterbrook (1984).

Kornhauser has written extensively on issues that arise in multi-judgesettings, both alone and with Sager. Kornhauser and Sager (1986) apply theCondorcet Jury Theorem to the context of judicial panels and show thatincreasing the number of judges on a panel will increase the accuracy of theoutcome. In addition, they argue that multi-judge panels can act consistently (inthe sense of avoiding cycles) but that multi-judge panels may act incoherently,in the sense that the pattern of decision will not satisfy community principles ofcoherent explanation.

In two related papers (Kornhauser (1992a), Kornhauser (1992b)) Kornhauserinvestigated several additional characteristics of collegial courts. He emphasizedthe dichotomous nature of common law adjudication. He argued further judgeshad to respect the results rather than the rules or rationales of prior decisions.In this context, he showed that, except under implausible conditions, a legalsystem will be path dependent; that is, the state of the law at any time will be aresult of the order in which the court has heard disputes. This path dependence,however, will not lead to inconsistency if the legal system observes strict staredecisis.

Next, Kornhauser observed that common law practice incorporates twodistinct ways of aggregating judgments of multiple judges: courts may resolvematters on a case-by-case or on an issue-by-issue basis. Kornhauser shows thatthere is a 'doctrinal paradox' in that these two methods may lead to differentoutcomes. He shows that the doctrinal paradox is distinct from the Condorcetparadox. Kornhauser and Sager (1993) extend the analysis of the doctrinalparadox in several ways. They observe, for instance, that in actual practice eachjudge decides how to aggregate the votes of other members on the court andthat this may affect the outcome.

Kornhauser (1995) considers the hierarchical structure of courts systems. Itexplains many of the features of the U.S. judicial system through a simpleproduction model. Kornhauser assumes that judges in the system form a team,in that all want the same goal, the maximization of the 'number of correct answerssubject to its resource constraint.' Then the structure of the production functionexplains the pattern of precedent observed and the specialization of trial courtsto fact finding and appellate courts to review of law. Other features, such as thelack of specialization of courts by subject matter, are not explained by the model.

Miceli and Cosgel, (1994) and Rasmusen (1994) have argued that judges'behavior is based on a tradeoff between writing decisions they prefer and thepossibility of reversal, either by higher courts or by future judges. O'Hara (1993)analyzes why appellate judges choose to follow precedents in the absence ofany formal rule mandating adherence to precedent. She explains this behavioras the result of a repeated game between different appellate judges, each ofwhom follows the precedents established by his or her colleagues' decisions inorder to avoid triggering a 'punishment' phase. In this punishment phase theprecedents established by the errant judge's decisions are ignored by his or hercolleagues. Shavell (1995) argues that the structure of the appellate process isa low cost method of error correction, since only a subset of cases are examinedfor error through an appeal.

Bibliography on Judge Made Law (9200)

Alexander, Janet Cooper (1994), 'Judges' Self Interest and Procedural Rules: Comment', 23Journal of Legal Studies, 647-665.

Alpa, Guido, Pulitini, Francesco, Rodota (1982), Stefano and Romani, Franco,Interpretazione Giuridica e Analisi Economica [Legal Interpretation and EconomicAnalysis], Milano, Giuffrè, 662 p.

Aranson, Peter H.(1986), 'Economic Efficiency and the Common Law: A Critical Survey',in Graf Von Der Schulenburg, J.-Matthias and Skogh, Göran (eds.), Law and Economicsand The Economics of Legal Regulation, Dordrecht, Kluwer, 51-84.

Aranson, Peter H.(1992), 'The Common Law as Central Economic Planning', 3Constitutional Political Economy, 289-317.

Armitage, Thomas C. (1985), 'Economic Efficiency as a Legal Norm', 7 Research in Lawand Economics, 1-27.

Ashenfelter, Orley; Eisenberg, Theodore; Schwab, Stewart J. (1995), 'Politics and theJudiciary: The Influence of Judicial Background on Case Outcomes', 24 Journal of LegalStudies, 257-81.

Backhaus, Jürgen G.(1989), 'Efficient Statute Law', in Faure, Michael and Van Den Bergh,Roger (eds.), Essays in Law and Economics. Corporations, Accident Prevention andCompensation for Losses, Antwerpen, Maklu, 23-32.

Bailey, Martin J.; Rubin, Paul H. (1994), 'A Positive Theory of Legal Change', 14International Review of Law and Economics, 467-77.

Benson, Bruce L. (1990), The Enterprise of Law: Justice Without the State, San Francisco,Pacific Research Institute for Public Policy.

Benson, Bruce L. (1992), 'Market Failure Versus Government Failure in the Production ofAdjudication', in Bowman, Gary, Hakim, Simon, and Seidenstat, Paul (eds.), Privatizingthe United States Justice System: Police, Adjudication, and Corrections Services fromthe Private Sector, Jefferson (NC), McFarland & Co., 203-225.

Benson, Bruce L. (1995), 'An Exploration of the Impact of Modern Arbitration Statutes onthe Development of Arbitration in the United States', 11 Journal of Law, Economics,& Organization, 479-501.

Benson, Bruce L. (1996), 'Uncertainty, the Race for Property Rights, and Rent Dissipationdue to Judicial Changes in Product Liability Tort Law', Cultural Dynamics.

Benson, Bruce L. and Wollan, Laurin A., Jr. (1991), 'Increasing Judicial Responsibility CanReduce Prison Overcrowding', in Tipp, Stacey L. (ed.), America's Prisons: OpposingViewpoints, San Diego, Greenhaven Press, 139-144.

Blume, Lawrence E. and Daniel L. Rubinfeld (1982), 'The Dynamics of the Legal Process,11 Journal of Legal Studies, 405-420.

Bruce, Christopher J.(1984), 'Testing the Hypothesis of Common Law Efficiency: TheDoctrine of Informed Consent', 6 Research in Law and Economics, 227-265.

Bruce, Christopher J. (1988), 'The Adjudication of Labor Disputes as a Private Good', 8International Review of Law and Economics, 3-19.

Buchanan, James M. (1978), 'Law and the Invisible Hand', in Siegan, Bernard H. (ed.), TheInteraction of Economics and the Law, Lexington, Lexington Books.

Carrington, Paul D.(1979), 'Adjudication as a Private Good: A Comment', 8 Journal of LegalStudies, 303-317.

Che, Yeon Koo and Yi, Jong Goo (1993), 'The Role of Precedents in Repeated Litigation',9 Journal of Law, Economics and Organization, 399-424.

Christainsen, Gregory B.(1990), 'Law as a Discovery Procedure', 9 Cato Journal, 497-530.

Chubb, Larry L.(1989), 'Economic Analysis in the Courts: Limits and Constraints', 64Indiana Law Journal, 769-801.

Clark, Robert C. (1981), 'The Interdisciplinary Study of 'Legal Evolution'', 90 Yale LawJournal, 1238-1274.

Cohen, George M.(1985), 'Posnerian Jurisprudence and Economic Analysis of Law: TheView from the Bench', 133 University of Pennsylvania Law Review, 1117-1166.

Cohen, Mark A. (1992), 'The Motives of Judges: Empirical Evidence from AntitrustSentencing,' 12 International Review of Law and Economics, 13 ff.

Cohen, Mark A. (1991), 'Explaining Judicial Behavior or What's 'Unconstitutional' aboutthe Sentencing Commission?', 7 Journal of Law, Economics, & Organization, 183-199.

Cooter, Robert (1992), 'The Minimax Constitution as Democracy', 12(2) InternationalReview of Law and Economics, 292-94.

Cooter, Robert D. and Daniel L. Rubinfeld (1989), 'Economic Analysis of Legal Disputesand Their Resolution,' 27(3) Journal of Economic Literature, 1092 ff.

Cooter, Robert D. and Kornhauser, Lewis A.(1980), 'Can Litigation Improve the Lawwithout the Help of Judges ?', 9 Journal of Legal Studies,139-163.

Cooter, Robert D.(1990), The Structural Approach to Adjudicating Social Norms: Evolutionof the Common Law Reconsidered, Working Paper, School of Law, University ofCalifornia at Berkeley.

Cooter, Robert D., Kornhauser, Lewis A. and Lane, D.(1979), 'Liability Rules, LimitedInformation, and the Role of Precedent', 10 Bell Journal of Economics, 366-373.

Cooter, Robert D.(1987), 'Liberty, Efficiency, and Law', 50(4) Law and ContemporaryProblems, 141-163.

Cooter, Robert D.(1983), 'The Objectives of Private and Public Judges', 41 Public Choice,107-132.

Cramton, Roger C.(1959), 'The Supreme Court and the Decline of State Power', 2 Journalof Law and Economics, 175-189.

Crew, Michael A. and Twight, Charlotte (1990), 'On the Efficiency of Law: A Public ChoicePerspective', 66 Public Choice, 15-136.

Culp, Jerome M. (1987), 'Judex Economicus', 50(4) Law and Contemporary Problems,95-140.

Davis, Otto A. (1979), 'Public and Private Characteristics of a Legal Process: A Comment',8 Journal of Legal Studies, 285-293.

Daynard, Richard A. (1971), 'Use of Social Policy in Judicial Decision-Making', 56 CarnellLaw Review, 919-950.

De Alessi, Louis (1985), 'Property Rights and the Judiciary', 4 Cato Journal, 805-811.Reprinted in Dorn, James A. and Manne, Henry G. (eds.), Economic Liberties and theJudiciary, Fairfax, George Mason University Press, 1987, 175-181.

Denzau, Arthur (1979), 'Litigation Expenditures as Private Determinants of JudicialDecisions: A Comment', 8 Journal of Legal Studies, 295-302.

Dicke, Hugo and Hartung, Hans (1986), 'Externe Kosten von Rechtsvorschriften [ExternalEffects of Legal Rules], Möglichkeiten und Grenzen der ökonomischen Gesetzesanalyse',Tübingen, J.C.B. Mohr, 123 ff.

Easterbrook, Frank H. (1992), 'Some Tasks in Understanding Law through the Lens ofPublic Choice: General Panel Commentary', 12 International Review of Law andEconomics, 284-288.

Easterbrook, Frank H. (1984), 'The Supreme Court, 1983 Term, Foreword: The Court andthe Economic System', 98 Harvard Law Review, 4-60.

Easterbrook, Frank H. (1982), 'Ways of Criticizing the Court', 95 Harvard Law Review,802 ff.

Eisenberg, Melvin Aron (1988), The Nature of the Common Law, Cambridge (Mass.),Harvard University Press, 204 ff.

Ellickson, Robert C. (1989), 'A Hypothesis of Wealth-Maximizing Norms: Evidence fromthe Whaling Industry', 5 Journal of Law, Economics, & Organization, 83-97.

Elliott, E. Donald (1985), 'The Evolutionary Tradition in Jurisprudence', 85 Columbia LawReview, 38-94.

Epstein, Richard A. (1987), 'Judicial Review: Reckoning on Two Kinds of Error', in Dorn,James A. and Manne, Henry G. (eds.), Economic Liberties and the Judiciary, Fairfax,George Mason University Press, 39-46.

Epstein, Richard A. (1982), 'The Social Consequences of Common Law Rules', 95 HarvardLaw Review, 1717-1751.

Epstein, Richard A. (1980), 'The Static Conception of the Common Law', 9 Journal ofLegal Studies, 253-275.

Fox, Eleanor M. (1986), 'The Politics of Law and Economics in Judicial Decision Making:Antitrust as a Window', 61 New York University Law Review, 554-588.

Friedman, David (1979), 'Private Creation and Enforcement of Law: A Historical Case', 8Journal of Legal Studies, 399-415.

Gerhart, Peter M. (1982), 'The Supreme Court and Antitrust Analysis: The (Near) Triumphof the Chicago School', Supreme Court Review, 319-349.

Golbert, J.P. and Lowenstein, Paul (1982), 'The Court and the Marketplace: Who ShouldRegulate Whom?', 34 Baylor Law Review, 39-65.

Goldberg, Victor P.(ed.) (1979), 'Discussion by Seminar Participants', 8 Journal of LegalStudies, 323-398.

Goodman, John C. (1979), 'An Economic Theory of the Evolution of the Common Law',7 Journal of Legal Studies, 235 ff.

Greenwalt, Kent (1977), 'Policy, Rights and Judicial Decision', 11 Georgia Law Review,991-1053.

Hadfield, Gillian K. (1992), 'Incomplete Contracts and Statutes: Commentary', 12International Review of Law and Economics, 257-259.

Hadfield, Gillian K.(1992), 'Biases in the Evolution of Legal Rules,' 80 Georgetown LawJournal, 583-616.

Harris, Peter (1985), 'Difficult Cases and the Display of Authority', 1 Journal of Law,Economics, & Organization, 209-221.

Hayek, Friedrich A. (1960), The Constitution of Liberty, Chicago, University of ChicagoPress.

Hayek, Friedrich A. (1973), Law, Legislation, and Liberty, 1 Rules and Order, Chicago,University of Chicago Press.

Hazard, Geoffrey C., Jr. (1979), 'Adjudication as a Private Good: A Comment', 8 Journal ofLegal Studies, 319-321.

Heiner, Ronald A. (1986), 'Imperfect Decisions and the Law: On the Evolution of LegalPrecedent and Rules', 15 Journal of Legal Studies, 227-261.

Higgins, Richard S. and Rubin, Paul H. (1980), 'Judicial Discretion', 9 Journal of LegalStudies, 129-138.

Hirshleifer, Jack (1982), 'Evolutionary Models in Economics and Law', 4 Research in Lawand Economics, Paul H. Rubin and Richard Zerbe, editors.

Holmes, Oliver Wendell (1880), The Common Law, Boston, Little Brown.

Hovenkamp, Herbert (1985), 'Evolutionary Models in Jurisprudence,' 64 Texas Law Review,645-685.

Kaplow, Louis (1987), 'Antitrust, Law & Economics, and the Courts', 50(4) Law andContemporary Problems, 181-216.

Katz, Avery (1988), 'Judicial Decisionmaking and Litigation Expenditure', 8 InternationalReview of Law and Economics, 127-143.

Kennedy, Duncan (1981), 'Cost-Reduction Theory as Legitimation', 90 Yale Law Journal,1275-1283.

Kenny, Paul (1982), 'Economic Analysis and Efficiency in the Common Law', in Cranston,Ross and Schick, Anne (eds.), Law and Economics, Canberra, Australian NationalUniversity, 42-58.

Kobayashi, Bruce H. and John R. Lott, Jr. (1994), 'Judicial Reputation and the Efficiencyof the Common Law,' mimeo, George Mason University.

Kornhauser, Lewis A. (1992a), 'Modeling Collegial Courts I: Path Dependence,' 12International Review of Law and Economics, 169-185.

Kornhauser, Lewis A. (1992b), 'Modeling Collegial Courts. II. Legal Doctrine,' 8 Journalof Law, Economics and Organization, 441-470.

Kornhauser, Lewis A. (1980), 'A Guide to the Perplexed Claims of Efficiency in the Law',8 Hofstra Law Review, 591-639.

Kornhauser, Lewis A. (1989), 'An Economic Perspective of Stare Decisis', 65 Chicago-KentLaw Review, 63-92.

Kornhauser, Lewis A. (1989), 'Response to Macey', 65 Chicago-Kent Law Review, 115-122.

Kornhauser, Lewis (1995), 'Adjudication by a Resource-Constrained Team: Hierarchy andPrecedent in a Judicial System', 68 Southern California Law Review, 1605 ff.

Kornhauser, Lewis (1996), 'Notes on the Logic of Legal Change,' in David Braybrooke(ed.), Social Rules: Origin, Character, Logic, Change, Westview Press.

Kornhauser, Lewis, and Sager, L. (1986), 'Unpacking the Court,' 96 Yale Law Journal, 82ff.

Kornhauser, Lewis A. and Lawrence G. Sager (1993), 'The One and the Many: Adjudicationin Collegial Courts', 81 California Law Review, 1 ff.

Kornhauser, Lewis, Cooter, Robert and Lane, D. (1979), 'Liability Rules, limitedinformation, and the role of precedent,' 10 Bell Journal of Economics, 366 ff.

Kübler, Friedrich (1990), ' Effizienz als Rechtsprinzip - Überlegungen zum rechtspraktischenGebrauch ökonomischer Argumente' [Efficiency als Legal Principle - Considerations forthe Legal Practice Use of Economic Arguments], in Baur, Jürgen F., Hopt, Klaus J. andMailänder, Peter K. (eds.), Festschrift für Ernst Steindorff, Berlin, de Gruyter, 687-704.

Landes, William and Richard Posner (1980), 'Legal Change, Judicial Behavior, and theDiversity Jurisdiction, 9 Journal of Legal Studies, 367-386.

Landes, William and Richard Posner (1987), The Economic Structure of Tort Law,Cambridge, Harvard University Press.

Landes, William M. and Posner, Richard A. (1979), 'Adjudication as a Private Good', 8Journal of Legal Studies, 235-284.

Landes, William M. and Posner, Richard A. (1976), 'Legal Precedent: A Theoretical andEmpirical Analysis', 19 Journal of Law and Economics, 249-307.

Landes, William M. (1971), 'An Economic Analysis of the Courts', 14 Journal of Law andEconomics, 61-107.

Latin, Howard (1987), 'Legal and Economic Considerations in the Decisions of JudgeBreyer', 50(4) Law and Contemporary Problems, 57-86.

Liebeler, Wesley J. (1985), 'A Property Rights Approach to Judicial Decision Making', 4Cato Journal, 783-804. Reprinted in Dorn, James A. and Manne, Henry G. (eds.),Economic Liberties and the Judiciary, Fairfax, George Mason University Press, 1987,153-174.

Liebermann, Yehoshua (1986), 'Economic Efficiency and Making of the Law: The Case ofTransaction Costs in Jewish Law', 15 Journal of Legal Studies, 387-404.

Linder, Douglas O. (1989), 'Some Doubts Concerning the Selection Hypothesis of GeorgePriest', 37 University of Kansas Law Review, 319-347.

Macey, Jonathan R. (1994), 'Judicial Preferences, Public Choice, and the Rules ofProcedure', 23 Journal of Legal Studies, 627-46.

Macey, Jonathan R. (1989), 'The Internal and External Costs and Benefits of Stare Decisis',65 Chicago-Kent Law Review, 93-113.

Magat, Wesley A. (1987), 'Howard Latin's Analysis of the Legal and EconomicConsiderations in the Decisions of Judge Breyer', 50 Law and Contemporary Problems,87-93.

Mcnollgast (1992), 'The Theory of Interpretive Canon and Legislative Behavior:Commentary', 12 International Review of Law and Economics, 235-238.

Mendelson, Wallace (1961), 'The Politics of Judicial Supremacy', 4 Journal of Law andEconomics, 175-185.

Miceli, Thomas J. and Metin M. Cosgel (1994), 'Reputation and Judicial Decision-Making,'23 Journal of Economic Behavior and Organization, 31-51.

Michelman, Frank I. (1978), 'Norms and Normativity in the Economic Theory of Law', 62Minnesota Law Review, 1015-1048.

Miller, Geoffrey P. (1989), 'Comment: Some Thoughts on the Equilibrium Hypothesis', 69Boston University Law Review, 561-568.

O'hara, Erin (1993), 'Social Constraint or Implicit Collusion?: Toward a Game TheoreticAnalysis of Stare Decisis', 24 Seton Hall Law Review, 736-778.

Parsons, Wes (Student Contribution)(1983), 'The Inefficient Common Law', 92 Yale LawJournal, 863-887.

Polinsky, A. Mitchell and Rubinfeld, Daniel L. (1988), 'The Deterrent Effects ofSettlements and Trials', 8 International Review of Law and Economics, 109-116.

Pollock, Stewart G. (1988), 'Economic Analysis at Work in Judicial Decision-Making',Annual Survey of American Law, 133-136.

Posner, Richard A. (1993), 'What Do Judges Maximize? (The Same Thing Everybody ElseDoes),' 3 Supreme Court Economic Review, 1-41.

Posner, Richard A. (1981), 'A Reply to Some Recent Criticisms of the Efficiency Theoryof the Common Law', 9 Hofstra Law Review, 775 ff.

Posner, Richard A. (1992), Economic Analysis of Law, Fourth Edition, Little, Brown,Boston.

Posner, Richard A. (1980), 'The Ethical and Political Basis of the Efficiency Norm inCommon Law Adjudication', 8 Hofstra Law Review, 487-507.

Posner, Richard A. (1985), The Federal Courts: Crisis and Reform, Harvard UniversityPress, Cambridge, 365 ff.

Posner, Richard A. (1981), 'The Present Situation in Legal Scholarship', 90 Yale LawJournal, 1113-1130.

Priest, George L. and Benjamin Klein (1984), 'The Selection of Disputes for Litigation', 13Journal of Legal Studies, 1 ff.

Priest, George L. (1977), 'The Common Law Process and the Selection of Efficient Rules',6 Journal of Legal Studies, 65-82.

Priest, George L. (1981), 'The New Scientism in Legal Scholarship: A Comment on Clarkand Posner', 90 Yale Law Journal, 1284-1295.

Priest, George L. (1980), 'Selective Characteristics of Litigation', 9 Journal of LegalStudies, 399 ff.

Priest, George (1985), 'The Invention of Enterprise Liability: A Critical History of theIntellectual Foundations of Modern Tort Law,' 14 Journal of Legal Studies, 461-528.

Priest, George L. (1987), 'Measuring Legal Change,' 3 Journal of Law, Economics, andOrganization, 193-225.

Rasmusen, Eric (1994), 'Judicial Legitimacy as a Repeated Game,' 10 Journal of Law,Economics & Organization, 63-83.

Richter, Rudolf (1987), 'The Efficiency of the Common Law: A New InstitutionalEconomics Perspective: Comment', in Pethig, Rudiger and Schlieper, Ulrich (eds.),Efficiency, Institutions, and Economic Policy: Proceedings of a Workshop Held by theSonderforschungsbereich 5 at the University of Mannheim, June 1986, New York,Springer, 123-125.

Rizzo, Mario J. (ed.) (1980), 'Symposium: Change in the Common Law: Legal and EconomicPerspectives. A Symposium Sponsored by The Institute for Humane Studies and theLiberty Fund', 9 Journal of Legal Studies, 189-427.

Rizzo, Mario J. (1980a), 'The Mirage of Efficiency', 8 Hofstra Law Review, 641-658.

Rizzo, Mario J. (1980b), 'Law Amid Flux: The Economics of Negligence and Strict Liabilityin Tort', 9 Journal of Legal Studies, 291 ff.

Rizzo, Mario J. and Arnold, Frank S. (1987), 'An Economic Framework for StatutoryInterpretation', 50 Law and Contemporary Problems, 165-180.

Rizzo, Mario J. (1980), 'Can There Be a Principle of Explanation in Common LawDecisions? A Comment on Priest', 9 Journal of Legal Studies, 423-427.

Rizzo, Mario J. (1985), 'Rules versus Cost-Benefit Analysis in the Common Law', 4 CatoJournal, 865-884. Reprinted in Dorn, James A. and Manne, Henry G. (eds.), EconomicLiberties and the Judiciary, Fairfax, George Mason University Press, 1987, 225-244.

Rizzo, Mario J. (1979), 'Uncertainty, Subjectivity and the Economic Analysis of Law', inRizzo, Mario J. (ed.), Time, Uncertainty and Disequilibrium, Lexington, LexingtonBooks, 71-89.

Roberts, Neal A. (1980), 'Beaches: The Efficiency of the Common Law and Other FairyTales', 28 UCLA Law Review, 169-196.

Roe, Mark J. (1996), 'Chaos and Evolution in Law and Economics,' 109 Harvard LawReview, 641-668.

Romano, Roberta (1992), 'Judicial Choice of Legal Doctrines: Comment', 8 Journal ofLaw,Economics and Organization, 47-58.

Rose-Ackerman, Susan (1987), 'Tullock and the Inefficiency of the Common Law', inRowley, Charles K. (ed.), Democracy and Public Choice: essays in Honor of GordonTullock, Oxford, Blackwell, 181-185.

Rowley, Charles K. and Brough, Wayne (1987), 'The Efficiency of the Common Law: ANew Institutional Economics Perspective', in Pethig, Rudiger and Schlieper, Ulrich(eds.), Efficiency, Institutions, and Economic Policy: Proceedings of a Workshop Heldby the Sonderforschungsbereich 5 at the University of Mannheim, New York, Springer,103-121.

Rowley, Charles K. (1987), 'Comment: A Public Choice Perspective on JudicialPragmactivism', in Dorn, James A. and Manne, Henry G. (eds.), Economic Liberties andthe Judiciary, Fairfax, George Mason University Press, 219-224.

Rubin, Paul H. and Martin J. Bailey (1994), 'The Role of Lawyers in Changing the Law', 23Journal of Legal Studies, 807 ff.

Rubin, Paul H. (1983), Business Firms and the Common Law. The Evolution of EfficientRules, New York, Praeger, 189 ff.

Rubin, Paul H. (1980), 'Decision Making and the Efficiency of Law: A Comment on Rizzo',March Journal of Legal Studies, 319-334.

Rubin, Paul H. (1982), 'Common Law and Statute Law', 11 Journal of Legal Studies,205-223.

Rubin, Paul H. (1977), 'Why is the Common Law Efficient?', 6 Journal of Legal Studies,51-63.

Sajó, András (1981), 'A Gazdaság jogi Szabályozásának egy Lehetséges útja' [A Possible Wayof Legal Regulation of the Economy], 4 Jogtudományi Közlöny, 297-308.

Sajó, András (1987), 'A jog a Gazdaság Szabályozástechnikái Közt' [Law as One of theRegulating Means of the Economy], 3 Jogtudományi Közlöny, 126-132.

Samuels, Warren J. and Mercuro, Nicholas (1984), 'Posnerian Law and Economics on theBench', 4 International Review of Law and Economics, 107-130.

Samuels, Warren J. and Mercuro, Nicholas (1986), 'Wealth Maximization and JudicialDecision-Making: The Issues Further Clarified', 6 International Review of Law andEconomics, 133-137.

Schäfer, Hans-Bernd (1989), 'Allokationseffizienz als Grundprinzip des Zivilrechts'[Allocative Efficiency as Basic Principle of Civil Law], in Ott, Claus and Schäfer,Hans-Bernd (eds.), Allokationseffizienz in der Rechtsordnung, Berlin, Springer, 1-24.

Scheppele, Kim Lane (1988), Legal Secrets, Equality and Efficiency in the Common Law,Chicago, University of Chicago Press, 363 ff.

Schwartz, Edward P. (1992), 'Policy, Precedent, and Power: A Positive Theory of SupremeCourt Decision Making', 8 Journal of Law, Economics and Organization, 219-252.

Shapiro, Martin (1972), 'Toward a Theory of Stare Decisis', 1 Journal of Legal Studies,125-134.

Shavell, Steven (1995), 'The Appeals Process as a Means of Error Correction', 24 Journalof Legal Studies, 379 ff.

Shepsle, Kenneth A. (1992), 'Congress Is a 'They,' Not an 'It': Legislative Intent asOxymoron', 12 International Review of Law and Economics, 239-256.

Simpson, A.W.B. (1979), 'The Horwitz Thesis and the History of Contracts', 46 Universityof Chicago Law Review, 533-601.

Sinder, Janet (1987), 'Economists as Judges: A Selective, Annotated Bibliography', 50(4) Lawand Contemporary Problems, 279-286.

Smith, Steven D. (1984), 'Rhetoric and Rationality in the Law of Negligence', 69 MinnesotaLaw Review, 277-323.

Spiller, Pablo T.; Spitzer, Matthew L. (1992), 'Judicial Choice of Legal Doctrines', 8Journal of Law, Economics and Organization, 8-46.

Spitzer, Matthew L. (1992), 'Jurisprudence and Formal Models', 12 International Review ofLaw and Economics, 295-296.

Sunstein, Cass R. (1992), 'Public Choice, Endogenous Preferences', 12 International Reviewof Law and Economics, 289-291.

Terrebonne, R. Peter (1981), 'A Strictly Evolutionary Model of Common Law', 10 Journalof Legal Studies, 397 ff.

Tullock, Gordon (1971), The Logic of the Law, New York, Basic Books.

Tullock, Gordon (1980), Trials on Trial: The Pure Theory of Legal Procedure, New York,Columbia University Press.

Varat, Jonathan D. (1986), 'Review Essay: Economic Ideology and the Federal Judicial Task(Review of The Federal Courts: Crisis and Reform by Richard A. Posner), 74 CaliforniaLaw Review, 649-674.

Veljanovski, Cento G. (1985), 'The Role of Economics in the Common Law', 7 Researchin Law and Economics, 41-64.

Von wangenheim, Georg (1993), 'The Evolution of Judge Made Law', 13 InternationalReview of Law and Economics, 381-411.

Wald, Patricia M. (1987), 'Limits on the Use of Economic Analysis in JudicialDecisionmaking', 50(4) Law and Contemporary Problems, 225-244.

Whichard, Willis P. (1987), 'A Common Law Judge's View of the Appropriate Use ofEconomics in Common Law Adjudication', 50(4) Law and Contemporary Problems,253-263.

Williams, Stephen F. (1980), 'The Static Conception of the Common Law: A Comment',9 Journal of Legal Studies, 277-289.

Wilson, James G. (1986), 'Justice Diffused: A Comparison of Edmund Burke's Conservatismwith the Views of Five Conservative, Academic Judges', 40 University of Miami LawReview, 913-975.

Wittman, Donald (1989), 'Why Democracies Produce Efficient Results', 97 Journal ofPolitical Economy, 1395-1424.

X (1987), 'Note: Judge Frank H. Easterbrook: A Faithful Adherent of the Law & EconomicsApproach Advocates by Professor Frank H. Easterbrook', 50(4) Law and ContemporaryProblems, 265-277.

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