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Rubin, Paul H. --- "Judge-made Law" [2011] ELECD 1064; in Parisi, Francesco (ed), "Production of Legal Rules" (Edward Elgar Publishing, 2011)

Book Title: Production of Legal Rules

Editor(s): Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440326

Section: Chapter 6

Section Title: Judge-made Law

Author(s): Rubin, Paul H.

Number of pages: 14

Extract:

6 Judge-made law
Paul H. Rubin



At the heart of economic analysis of law is a mystery that is also an embarrassment:
how to explain judicial behavior in economic terms ... Posner (1993, p. 2)

1. Introduction
As the quotation from Posner indicates, explanation of the behavior of judges
is one of the most important but also most difficult problems facing law and
economics scholars. This is because judicial opinions are the result of utility-
maximizing behavior and economists are unable to specify the details of judges'
(or anyone else's) utility functions. Consequently, it has proven difficult to
develop a theory that explains why judges make the decisions that we observe,
though, as we discuss below, many have tried. Because of the difficulty of
explaining decisions in terms of utility functions, there have also been attempts
to use evolutionary models to explain outcomes. In these models, the form of
law is due to factors involving wealth-maximizing behavior of actors in the
legal process such as litigants or attorneys, and judges play a minor role.
The structure of this chapter is as follows: I first consider briefly arguments
regarding the efficiency of common law. I then discuss utility-maximizing
models of judicial behavior. I next consider the evolutionary models. The final
section discusses models of multi-judge behavior.

2. EfficiencyofCommonLaw
A basic question for law and economics is the efficiency of law. Hayek (1960,
1973), although writing before the law and economics movement and writing
from another perspective, had ...