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Rubin (economics and law, Emory U.) presents a selection of 22 of the most important articles on the evolution of efficient common law, published in a variety of legal journals between 1977 and 2006, and reproduced here in their original format. The text includes both articles that support the hypothesis of efficient evolution, and articles that argue the evolutionary process is not efficient. Prefaced by Rubin's introductory overview of the topic, the articles are organized into seven sections covering the originations of common law efficiency, the first critics, critical examinations looking explicitly at evolutionary processes, biased evolution, specific applications of the law, Hayekian (macro) efficiency, and a summary of the law. No subject index.
The efficiency of the common law hypothesis has generated a large bulk of literature in the last decades. The main argument is that there is an implicit economic logic to the common law; the doctrines in common law provide a coherent and consistent system of incentives which induce efficient behavior. We start by observing that if the common law is overall evolutionarily efficient, we are left with no explanation for the important doctrinal differences across common law jurisdictions. The observation is more striking if we keep in mind that presumably the de jure initial condition was the same, namely English law. This paper assesses the efficiency of the common law hypothesis to detect the possible explanations for those main differences. If local determinants shape the common law differently, the literature needs to address these particularities that have been largely ignored. The consequence is that there is probably no single efficient outcome, thus undermining the "one-size-fits-all" theory of the legal origins literature.
Economists advise that the law should seek efficiency. More recently, it has been suggested that common law systems are more conducive of economic growth than code-based civil law systems. This book argues that there is no theory to support such statements and provides evidence that rejects a 'one-size-fits-all' approach. Both common law and civil law systems are reviewed to debunk the relationship between the efficiency of the common law hypothesis and the alleged inferiority of codified law systems. Legal Origins and the Efficiency Dilemma has six aims: explaining the efficiency hypothesis of the common law since Posner’s 1973 book; summarizing the legal origins theory in the context of economic growth; debunking their relationship; discussing the meaning of 'common law' and the problems with the efficiency hypothesis by comparing laws across English speaking jurisdictions; illustrating the shortcomings of the legal origins theory with a comparative law and economics analysis; and concluding there is no theory and evidence to support the economic superiority of common law systems. Based on previous pieces by the authors, this book expands their work by including new areas of analysis (such as trusts), detailing previous analysis (such as French law versus common law in the areas of contract, property and torts), and updating for recent developments in the academic discourse. This volume is of interest to academics and students who study microeconomics, comparative law and foundations of law, as well as legal policy analysts.
Originally published: 5th ed. Boston: Little, Brown and Co., 1956.
This book addresses two countervailing challenges to theory and policy in law and economics. The first is the rise of legal origins theory, which denies the comparative law view of convergence between common law and civil law by the assertion of an economic superiority of common law. The second is the series of economic crises in the very financial markets on which that assertion was based. Both trends unsettled certainties about the rule of law and institutional economics. Meeting legal origins theory in its main areas of political science, sociology and economics, the book extends the interdisciplinary reach to neglected aspects of comparative law, legal history, dynamic econometric analysis and "quasi-natural experiments" with counterfactual evidence of different institutional regimes in divided countries. These combined methodological tools make tests of the economic impact of different legal origins much more reliable. This is shown for developed and newly industrialized countries as well as developing, transforming and emerging countries with or without financial center advantage, affected or not by financial crises. The Asian financial crises and the American subprime crisis have been, or could have been resolved using the resources of common law or civil law. These cases and data on access to justice in Africa, Asia and Latin America reveal the problem of substantive law remaining "law on the books" without efficient procedural rules and judicial structures. The single most striking common law-civil law divide is that lawyer-dominated common law procedure is slower and costlier than judge-managed civil law procedure. Countries as diverse as the Netherlands, Japan, and China show functional interaction between culture and law in legal reforms. Such interaction can reduce the occurrence of legal disputes as well as facilitate their resolution. It can use economic crises as catalysts for legal reforms or rely on regional integration, and it should replace the discredited method of legal "transplants" by sustained dialogue between legal advisors and all actors involved in legal reforms.
DigiCat Publishing presents to you this special edition of "The Common Law" by Oliver Wendell Holmes. DigiCat Publishing considers every written word to be a legacy of humankind. Every DigiCat book has been carefully reproduced for republishing in a new modern format. The books are available in print, as well as ebooks. DigiCat hopes you will treat this work with the acknowledgment and passion it deserves as a classic of world literature.
'The economic analysis of the production of legal rules has been so far spread over many legal books and articles focusing on other topics. This fascinating volume, edited by Francesco Parisi, is the first book dealing with the production of legal rules in a systemic and comprehensive way. A dream-team of scholars from both the United States and Europe use economics tools to investigate legislation, regulation, judge-made law, social norms, customary law, and international law. Legislators, regulators, judges, economists, practicing and academic lawyers should not miss reading this book.' - Ariel Porat, Tel Aviv University, Israel