The Dynamics of the Legal Process

Abstract

IN the last few years a number of legal scholars have studied the common law from a primarily positive point of view, asking whether or not the behavior of the relevant parties will cause the legal system to move to an outcome. Several have claimed that judges will be motivated to prefer an efficient rather than inefficient outcome,' while others have expanded this approach by arguing that the repeated litigation of inefficient legal rules will generate a tendency to replace these inefficient rules with more efficient precedents.2 Goodman3 has taken this analysis a step further by developing a model which looks more carefully at the adversary process. As a result, he is able to develop a more general set of conditions under which the common law will be efficient. Goodman, as well as Rizzo and Arnold4 and Cooter, Kornhauser, and Lane5 present interesting critiques of the earlier models, while focusing on the question of whether the legal process will tend over time to an efficient outcome. In terms of the language of economics, all of the previous authors focus