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date: 29 March 2020

Abstract and Keywords

One of the most illustrious normative claims in the law and economics literature, originating with Posner and supported by models of evolutionary legal change, posits that a system of judge-made law offers efficiency advantages over statute-based systems. In recent years, however, scholarship has identified aspects of common law systems that undermine the optimism about judge-made efficiency. This chapter reviews the original economic literature on the efficiency of the common law and then describes supply- and demand-side obstacles to efficient judge-made law. On the supply side, a rich body of literature on judicial decision-making and judicial attitudes casts doubt on the ability as well as the motivations of courts to bring about efficient precedent. Demand-side complications include interest group effects, plaintiff selection effects, information selection effects, settlement selection effects, and procedural factors.

Keywords: common law efficiency, economics, judge-made law, judicial decision-making, judicial attitudes

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