Synthetic Common Law

Abstract

This article proposes a regime in which contracting parties would select menus of synthetic (hypothetical) cases published by private associations who then would commit to adjudicate future disputes between the parties based on those cases. The first half of the article analyzes common law and its regulatory alternatives and explains the advantages of synthetic common law relative to each alternative. The second half of the article analyzes how a synthetic common law regime could reduce uncertainty and unfairness in the market for financial derivatives. A synthetic common law regime could eliminate many of the problems associated with the current regulatory alternatives of common law, statutory law, private law, and private arbitration. Because synthetic common law would be based on ex ante findings by the parties, it more likely would reflect societal practice and parties' expectations than does common law, which is based on ex post findings by a judge or jury. Because parties could incorporate synthetic common law cases at very low cost, the regime would not suffer from the depletion of relevant precedents, as real common law has. Because synthetic common law would be based on broadly ranging menus of cases, it would avoid the inflexibility of statute-based regimes. Because synthetic common law would rely on analogical reasoning by private judges based on cases specified ex ante, it would avoid certain intractable problems associated with private contract provisions, including the difficulty of specifying contingencies of rapidly evolving practices. Because synthetic common law would be administered privately it would generate the benefits of existing private dispute resolution regimes, but because synthetic common law would provide to parties a list of cases to govern any dispute, it would avoid the uncertainty and secrecy associated with private arbitration. Synthetic common law is an alternative regime to consider for legal scholars writing in the area of institutional competence and public choice. A public choice analysis need not compare only a legislature captured by special interests to a sluggish and ill-equipped judiciary. In certain areas of practice ? especially those with rapidly evolving technologies (e.g., finance, telecommunications, intellectual property, computer law, the Internet, and perhaps commercial or corporate law) ? synthetic common law may be a reasonable middle road.