SYNTHETIC COMMON LAW case, hinted that the result is apocryphal any judge would resolve a dispute about a damaged churn in a sensible way, in line with the parties expectations Finally, recent empirical work in psychology supports conclusion that there are non-economic reasons to believe common law adjudication is fair to the parties involved. Common law djudication gives parties the thing they seem to desire most: their ology literature suggest tha disputants believe having a chance to describe their version of the story to an impartial adjudicator is the most important factor determining whether they perceive a particular process of dispute resolution as"fair. In fact, this"day in court" factor outweighs every other variable tested, including the actual outcome of the dispute. If these studies are correct, to the extent the common lav is perceived as fair, it generates greater happiness among disputants than would a system that did not give parties the opportunity to air 2. The Supply of Legal Rules A common law approach provides a second, equally valuable function. Courts add to and enrich the supply of legal rules in a way that reflects the values of society. Thus, a key advantage to a common law approach is that judicial rules evolve slowly as a flexible response to the actions and preferences of individuals and institutions involved in disputes. As such rules evolve, those parties, as well as other non-parties who learn of the rules, can live and plan accordingly. Then, other individuals and institutions are involved in the next round of cases, which generates the next set of legal rules and so forth all reflecting the behavior and values of societ Several scholars have concluded that the common law upholds the rule of law more effectively than civil law because of its flexibility coupled with the stickiness"of precedent. Implicit in this argument is a distrust of the democratic process: the notion is that judges with life tenure are able to resolve disputes in an impartial manner, and therefore are better at generating legal rules than See supra note 15 and accompanying text See, e.g, Tom R. Tyler, et al., The Two Psychologies of Conflict resolution Differing Antecedents of Pre-Experience Choices and Post-Experience evaluations. 2(2)GROUP PROCESSES AND INTERGROUP RELATIONS99(1999)(describing these studies) However, the fact that disputants believe common law adjudication is fair overweight the benefits of being heard in an apparently far tants might irrationally ocess, in reality, the process might be unfair See id Some scholars have argued that the behavior of parties in those relatively few cases that involve a published decision are not representative of the behavior of other parties. I consider these arguments infra at Part Il. B I ee.g. F.A. HAYEK, LAW. LEGISLATION AND LIBERTY. LAW, LEGISLATION AND LIBERTY: A NEW STATEMENT OF THE LIBERAL PRINCIPLES OF JUSTICE AND POLITICAL ECoNOMY(1983)(arguing that common law is preferable to civil law because sative rules are both less flexible in form and more susceptible to sudden change); EISENBERG, supra note 2, at 6(arguing that common law courts should play the role of developing the rule of law on a case-by-case basis)2000] SYNTHETIC COMMON LAW 11 case,48 hinted that the result is apocryphal: any judge would resolve a dispute about a damaged churn in a sensible way, in line with the parties’ expectations. Finally, recent empirical work in psychology supports a conclusion that there are non-economic reasons to believe common law adjudication is fair to the parties involved. Common law adjudication gives parties the thing they seem to desire most: their day in court. Recent studies in the psychology literature suggest that disputants believe having a chance to describe their version of the story to an impartial adjudicator is the most important factor determining whether they perceive a particular process of dispute resolution as “fair.” In fact, this “day in court” factor outweighs every other variable tested, including the actual outcome of the dispute.49 If these studies are correct, to the extent the common law is perceived as fair, it generates greater happiness among disputants than would a system that did not give parties the opportunity to air their views. 50 2. The Supply of Legal Rules A common law approach provides a second, equally valuable, function. Courts add to and enrich the supply of legal rules in a way that reflects the values of society.51 Thus, a key advantage to a common law approach is that judicial rules evolve slowly as a flexible response to the actions and preferences of individuals and institutions involved in disputes.52 As such rules evolve, those parties, as well as other non-parties who learn of the rules, can live and plan accordingly. Then, other individuals and institutions are involved in the next round of cases, which generates the next set of legal rules, and so forth, all reflecting the behavior and values of society. Several scholars have concluded that the common law upholds the rule of law more effectively than civil law because of its flexibility, coupled with the “stickiness” of precedent.53 Implicit in this argument is a distrust of the democratic process: the notion is that judges with life tenure are able to resolve disputes in an impartial manner, and therefore are better at generating legal rules than 48 See supra note 15 and accompanying text. 49 See, e.g., Tom R. Tyler, et al., The Two Psychologies of Conflict Resolution: Differing Antecedents of Pre-Experience Choices and Post-Experience Evaluations, 2(2) GROUP PROCESSES AND INTERGROUP RELATIONS 99 (1999) (describing these studies). 50 However, the fact that disputants believe common law adjudication is fair does not necessarily dispose of the fairness question: disputants might irrationally overweight the benefits of being heard in an apparently fair process; in reality, the process might be unfair. 51 See id. 52 Some scholars have argued that the behavior of parties in those relatively few cases that involve a published decision are not representative of the behavior of other parties. I consider these arguments infra at Part II.B.1. 53 See, e.g., F.A. HAYEK, LAW, LEGISLATION AND LIBERTY, LAW, LEGISLATION AND LIBERTY: A NEW STATEMENT OF THE LIBERAL PRINCIPLES OF JUSTICE AND POLITICAL ECONOMY (1983) (arguing that common law is preferable to civil law because legislative rules are both less flexible in form and more susceptible to sudden change); EISENBERG, supra note 2, at 6 (arguing that common law courts should play the role of developing the rule of law on a case-by-case basis)