20001 SYNTHETIC COMMON LAW common law system survived despite repeated threats, powerful criticism, and almost insurmountable obstacles, including-some argue the emergence of Parliament as a power in the eighteenth century. As the argument goes, if common law adjudication had not been an efficient means of resolving disputes, given the state of English society at the time, it likely would not have persisted over time Moreover. the fact that common law rules survived while legislatures were empowered to enact different rules is especiall strong evidence that a well-functioning democratic society could do not better than those common law rules just as the common law was threatened in England, the expansive reach of Congress has threatened U.S. common law for many decades. Again, the argument goes, if the common law were not efficient system, elected representatives would have substituted more efficient rules In the 1970s, Judge Richard Posner and others attempted to buttress the intuitive appeal of the argument for common law with economic analysis. Their arguments also have an evolutionary perspective. In general, the economic argument, first advanced by Posner and William Landes is that to the extent common law adjudication involves private parties acting in their own self-interest and judges deciding cases based on wealth-maximizing standards, onl efficient rules will survive. Accordingly, the common law is wealth maximizing Judges leave inefficient rules to the side, and over time preserve and follow only efficient rules A. Other scholars then attempted to explain how the structure of common law adjudication reinforces this efficiency-seeking process or example, George Priest argued that the process of litigation, and how parties choose whether and when to litigate, pushes common law volution of Commercial Norms, 26 J LEGAL STUD. 377, 382n 9(1997)(citing seve'26 See TULLoCK, supra note 23, at 5-6; ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 241(1986). Tullock has argued that the common law was threatened several times during the Middle ages, when the common law survived more in the memories of individual judges and practitioners as oral histories than in formal records. See, e.g, TULLOCK, supra note 23, at 8(noting that the law was largely recorded, and occasionally the record would be consulted") This a nt assumes the democracy is well-functioning one, an assumption that may or may not be true e TULLoCK, supra note 23, at 6 (quoting Justice William Blackstone as saying in 1783 that the competence of Parliament was so great that Blackstone knew of no power in the ordinary forms of the constitution that is vested with authority This argument ignores the fact that high transaction costs, especially the collective action costs that dominate democratic voting, may prevent the legislature from effectively amending poor common law rules, although there is evidence that at least on occasion Congress can act to overturn or"amend" judicial decisions, notwithstanding these transaction costs. See, e.g. 18 U.S.C.$ 1346(amending definition of"property"in the mail fraud statute to include intangible rights, afte the Supreme Court held that such rights were not included), see generally MANCUR OLSON. THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS e william M. Landes Richard A Posner, Adjudication as a Private Good, 8J LEGAL STUD. 235(1979)2000] SYNTHETIC COMMON LAW 7 common law system survived despite repeated threats, powerful criticism, and almost insurmountable obstacles, including – some argue – the emergence of Parliament as a power in the eighteenth century.26 As the argument goes, if common law adjudication had not been an efficient means of resolving disputes, given the state of English society at the time, it likely would not have persisted over time. Moreover, the fact that common law rules survived while legislatures were empowered to enact different rules is especially strong evidence that a well-functioning27 democratic society could do not better than those common law rules. Just as the common law was threatened in England,28 the expansive reach of Congress has threatened U.S. common law for many decades. Again, the argument goes, if the common law were not an efficient system, elected representatives would have substituted more efficient rules.29 In the 1970s, Judge Richard Posner and others attempted to buttress the intuitive appeal of the argument for common law with economic analysis. Their arguments also have an evolutionary perspective. In general, the economic argument, first advanced by Posner and William Landes, is that to the extent common law adjudication involves private parties acting in their own self-interest and judges deciding cases based on wealth-maximizing standards, only efficient rules will survive.30 Accordingly, the common law is wealth maximizing. Judges leave inefficient rules to the side, and over time preserve and follow only efficient rules. Other scholars then attempted to explain how the structure of common law adjudication reinforces this efficiency-seeking process. For example, George Priest argued that the process of litigation, and how parties choose whether and when to litigate, pushes common law Evolution of Commercial Norms, 26 J. LEGAL STUD. 377, 382 n.9 (1997) (citing several articles). 26 See TULLOCK, supra note 23, at 5-6; ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 241 (1986). Tullock has argued that the common law was threatened several times during the Middle Ages, when the common law survived more in the memories of individual judges and practitioners as oral histories than in formal records. See, e.g., TULLOCK, supra note 23, at 8 (noting that the law was largely judge-made and unwritten, although some “common law court decisions were recorded, and occasionally the record would be consulted”). 27 This argument assumes the democracy is well-functioning one, an assumption that may or may not be true. 28 See TULLOCK, supra note 23, at 6 (quoting Justice William Blackstone as saying in 1783 that the competence of Parliament was so great that Blackstone knew “of no power in the ordinary forms of the constitution that is vested with authority to control it”). 29 This argument ignores the fact that high transaction costs, especially the collective action costs that dominate democratic voting, may prevent the legislature from effectively amending poor common law rules, although there is evidence that at least on occasion Congress can act to overturn or “amend” judicial decisions, notwithstanding these transaction costs. See, e.g. 18 U.S.C. § 1346 (amending definition of “property” in the mail fraud statute to include intangible rights, after the Supreme Court held that such rights were not included); see generally MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965). 30 See William M. Landes & Richard A. Posner, Adjudication as a Private Good, 8 J. LEGAL STUD. 235 (1979)