The Dynamic Cycle of Legal Change

Abstract

Justice Oliver Wendell Holmes Jr. famously observed that the life of the law is not logic, but experience. Holmes’ observation, however, still leaves us with the task of figuring out how the legal system actually works. Although Holmes made his statement over 130 years ago, there is still no universally accepted analytical approach for describing how the American legal system creates and changes the law. This article proposes a Dynamic Cycle of Legal Change as a model for understanding the structure and operation of the American legal system. Part I first posits that we should consider the legal system from an systems perspective. Part II then describes the proposed Dynamic Cycle of Legal Change (DCLC) as an information system model of the legal system. Part III illustrates the operation of the DCLC in three settings: common law, legislation and direct democracy. Illustrations include settings of gender equality, fame as a property asset, palimony claims, crime victims bills of rights, same-sex marriage statutes, solar acts, and the California coastal protection initiative and subsequent statute. Although the article is primarily descriptive of how the American legal system operates, it can perhaps serve as the foundation for the normative task of determining how the system should operate as well.