6 10/9/00 DRAFT-DO NOT CITE WITHOUT PERMISSION [ VOL # minute accretions of past individuals, of whom each built upon the elics which his predecessors left, and in his turn left a foundation upon which his successors might work. This romanticized notion of the common law as coral reef is(or was, until recently ) deeply embedded in the psyche of lawyers and legal academics. The language is loaded: Learned Hand's metaphor of the coral reef implicitly praises the role of judges in developing a"monument"(i.e,common law) through an incremental, gradual, and fair process Why such lofty praise? As the argument goes, there are two chief advantages to the common law. First, it provides a mechanism for resolving disputes in a fair and efficient manner. Second, it generates ply of incremental and consistent legal rules that reflect social 1. Evolution and Efficiency First, the superiority of a common law approach is rooted in the notion that courts resolve disputes in a fair and efficient manner by reasoning from existing standards, either of society generally or of the legal system specifically. This function- dispute resolution depends on current and past practice. Disputes typically derive from a claim of right by an individual or institution based on the application, meaning, or implications of a particular societys existing The process of common law dispute resolution is both decentralized and passive. A decentralized approach ensures that judges will hear disputes involving a large swath of experience in society; common law rules then should reflect differences in standards among various segments within society. Just as importantly, courts lay a largely passive role, responding only when parties set in motion a particular legal dispute Ideally, a societys method of dispute resolution should be efficient and fair. Commentators have argued that the decentralized passive common law is both. The efficiency argument has an evolutionary flair. In its most basic terms, the argument is that the common law is an efficient dispute resolution system simply because it is the system that has survived the test of time. The English come again in litigation: as well as to keep the scale of justice even and steady, and not liable to waiver with every new judges opinion; and also because the law in that case being solemnly declared and determined, what before was uncertain, and aps indifferent, is now become a permanent rule which is not in ast of any subsequent judge to alter or vary from according to his private senti he being not delegated to pronounce a new law but to maintain and expound SIR WILLIAM BLACKSTONE, COMMENTARIES 68(1775). The synthetic common law roposal offered embraces Blackstones appreciation of the utility of common law, but takes issue with his respect for its"permanent rule"status Learned hand, Judge Cardoso's The Nature of the Judicial Process, 35 HARV L.REV.479,479(1922 2 see GORDON TULLOCK, THE CASE AGAINST THE COMMON LAW 2-3(1997) See id. at 1 2 There may be a gap, of course, between the fact of evolution and the argument that evolution is efficient. In evolutionary biology, for example, there is strong evidence of evolutionary patterns that belie "survival of the fittest"arguments. The fact that a particular practice survives during a periodic of selection and variation does not necessarily mean it is the optimal current practice. For a discussion of evolution as applied to legal theory, see Jody S. Kraus, Legal Design and the6 10/9/00 DRAFT – DO NOT CITE WITHOUT PERMISSION [VOL. #:# minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.”22 This romanticized notion of the common law as coral reef is (or was, until recently) deeply embedded in the psyche of lawyers and legal academics. The language is loaded: Learned Hand’s metaphor of the coral reef implicitly praises the role of judges in developing a “monument” (i.e., common law) through an incremental, gradual, and fair process. Why such lofty praise? As the argument goes, there are two chief advantages to the common law. First, it provides a mechanism for resolving disputes in a fair and efficient manner. Second, it generates a supply of incremental and consistent legal rules that reflect social practice. 1. Evolution and Efficiency First, the superiority of a common law approach is rooted in the notion that courts resolve disputes in a fair and efficient manner by reasoning from existing standards, either of society generally or of the legal system specifically.23 This function – dispute resolution – depends on current and past practice. Disputes typically derive from a claim of right by an individual or institution based on the application, meaning, or implications of a particular society’s existing standards.24 The process of common law dispute resolution is both decentralized and passive. A decentralized approach ensures that judges will hear disputes involving a large swath of experience in society; common law rules then should reflect differences in standards among various segments within society. Just as importantly, courts play a largely passive role, responding only when parties set in motion a particular legal dispute. Ideally, a society’s method of dispute resolution should be efficient and fair. Commentators have argued that the decentralized, passive common law is both. The efficiency argument has an evolutionary flair. In its most basic terms, the argument is that the common law is an efficient dispute resolution system simply because it is the system that has survived the test of time.25 The English come again in litigation: as well as to keep the scale of justice even and steady, and not liable to waiver with every new judge’s opinion; and also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule which is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being not delegated to pronounce a new law, but to maintain and expound the old one.” I SIR WILLIAM BLACKSTONE, COMMENTARIES 68 (1775). The synthetic common law proposal offered embraces Blackstone’s appreciation of the utility of common law, but takes issue with his respect for its “permanent rule” status. 22 Learned Hand, Judge Cardozo’s The Nature of the Judicial Process, 35 HARV. L. REV. 479, 479 (1922). 23 See GORDON TULLOCK, THE CASE AGAINST THE COMMON LAW 2-3 (1997). 24 See id. at 1. 25 There may be a gap, of course, between the fact of evolution and the argument that evolution is efficient. In evolutionary biology, for example, there is strong evidence of evolutionary patterns that belie “survival of the fittest” arguments. The fact that a particular practice survives during a periodic of selection and variation does not necessarily mean it is the optimal current practice. For a discussion of evolution as applied to legal theory, see Jody S. Kraus, Legal Design and the