A positive theory of legal change

Abstract

There is no generally accepted positive economic theory of common law change. There are, of course, innumerable economic explanations of particular laws and equilibrium theories that claim that the law in some sense tracks (or fails to track) economic efficiency. Thus, Landes and Posner* claim to have “the” positive theory of law, and this theory is that the law is efficient. However, they do not provide any mechanism explaining why this is so. Blume and Rubinfeld provide a normative theory of the optimal rate of depreciation of precedent, but again no positive theory.g We propose a straightforward remedy for this omission and find a strong parallel in common law to the forces that change statute law, including rent seeking by special interest groups. The major class of economic models attempting to explain legal change are the evolutionary models.“ These models attempted to explain the alleged efficiency of the common law. The ultimate consensus was that the models identified some weak tendency toward efficiency but not enough to provide a basis for the Posnerian claim that the common law is effrcient5