Jurisdictional Competition and the Evolution of the Common Law

Abstract

This Article explores the role that jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees for each case. As a result, judges had an incentive to hear more cases. The central argument of this Article is that, since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs. Courts expanded their jurisdictions to give plaintiffs more choices; they made their procedures cheaper, swifter, and more effective; and they developed legal doctrines that made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraints, most importantly Parliament and Chancery. This Article tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition.