Judicial doctrines tend to evolve toward efficiency.
Posner's 1973 claim, and heavily contested. Critics note that common law also entrenches distributional outcomes, and that efficiency is doing work as both description and endorsement.
In practice
- A line of negligence cases settles, over forty years, on placing liability with whoever could have prevented the harm most cheaply.
- A line of tenancy cases settles just as firmly on protecting whichever party could afford to litigate, and the same evolutionary story is told about both.
- Possible explanations
- The proposed explanation is selection through litigation: inefficient rules impose larger losses, so the parties they hurt have more reason to litigate, and over time the rules that survive are the ones that waste least.
- In its favour
- The selection mechanism is a real argument with formal models behind it, and several common law doctrines do have efficiency rationales that judges have themselves articulated.
- Against it
- The efficiency claim is contested: the common law also entrenches distributional outcomes, litigation is driven by stakes rather than by inefficiency, and efficiency is doing work as both the description and the standard.
- Standing
- The efficiency claim is contested, and the selection mechanism proposed to produce it is disputed.
- Subject
- Law & Politics
- Essay
- Competing accounts of how power works