Abstract

English common law evolves according to the stream of cases that are brought before judges. Accordingly, ``judge made" law can be viewed as a function of the demand for judicial decisions by plaintiffs. The trajectory of how a particular law evolves, therefore, depends on the ``stream” of (relevant) cases that are brought before the court by plaintiffs. We study a model of the common law’s evolution. Our analysis shows that: (a) plaintiffs or defendants have incentive to selectively choose which cases to litigate in order to shape the law’s evolution and (b), they may choose to settle a case (pre-trial) in order to prevent the court from rendering a decision that will shape the law to their disadvantage. The incentives to shape the law (or to prevent it from evolving) will be especially strong for repeat actors such as firms, or advocacy groups (such as the American Civil Liberties Union). These incentives inefficiently skew decisions especially when long lived plaintiffs interact with short lived defendants. We also show that although pre-trial settlement may be not dynamically efficient because it prevents the law from evolving towards more efficient outcomes.

Reference

Andrew Samuel (Loyola University of Maryland), “The evolution of the Common Law with strategic plaintiffs”, IAST General Seminar, Toulouse: IAST, April 4, 2023, 11:30–12:30, room Auditorium 4 (First Floor – TSE Building).