Judicial versus 'natural' selection of legal rules with an application to accident law

摘要

Law and economics scholars argue that the common law evolves toward efficiency. Invisible-hand theories suggest that the law is primarily driven by a selection process whereby inefficient laws are litigated more frequently than efficient laws, and hence are more likely to be overturned. However, the preferences of judges also necessarily affect legal change. This paper models the interaction of these two forces to evaluate the efficiency claim, and then applies the conclusions to the evolution of accident law in the United States beginning in the 19th century. Specifically, it attributes the persistence of negligence to its efficiency properties, despite its having been initially selected by judges for a different reason. The paper relates legal evolution to biological evolution by employing the concepts of natural and artificial selection, and the more recent concept of exaptation.