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10 10/9/00 DRAFT-DO NOT CITE WITHOUT PERMISSION VOL # additional question of fairness. To some extent, the above evolutionary arguments support the notion that the common law is fair. In a world with perfect information and zero transaction costs rational, fully-informed judges would resolve disputes in a manner that both maximized not only the welfare of the parties to the dispute, but that of society as a whole. If they did not, the argument goes, parties in future disputes(or affected non-parties) would point out the ill effects of a particular decision, and a rational, fully-informed judge would alter the applicable common law legal rule. If some judges were irrational or ill informed, parties would find other, better judges Notwithstanding these weaknesses, there are strong arguments that the common law is a fair method of dispute resolution because it protects parties' expectations. The credibility of common la djudication is based on the notion of replicability, i.e., that courts employ consistent methodologies across cases. Numerous scholars and commentators have focused on the preservation of expectations through replicable decision-making as justifying the fairness of common law. Melvin Eisenberg has noted that disputes in the U. s during the nineteenth century often relied on usages, and therefore by definition depended on the behavior and expectations of private parties. Justice Cardozo believed in the general rule of following precedent to ensure that private parties'rights and beliefs would be protected in an evenhanded, consistent, and fair manner. Jeremy Bentham -an opponent of common law generally - advocated a predictable judicial framework to protect parties' expectations, saying that"the business of the Judge is to keep the distribution of valuables and of rewards and punishments in the course of expectation. Holmes, in his story about the judge in the churn redistribution scenarios underlying the normative force of Kaldor-Hicks efficiency he weaknesses of this argument are addressed in detail in Part Il. B. For now, it is sufficient to note that judges might be irrational and typically do perfect information. See discussion infra at Part V.B. Moreover, privat e TULLoCk, supra See EISENBERG, supra note 2, at 38(describing courts adopting miners' usages as rules of law in mining claims, and whalers usages as rules of law disputes of the property rights of harpooned whales) e Mark D. Hinderks Steve A Leben, Restoring the Common in the La: A Proposal for the Elimination of Rules Prohibiting the Citation of Unpublished "The deference is that due to the determination of former judgments s due not to their wisdom, but to their authority: not in compliment to dead mens vanity Egal consequences of an act before they do it: that public expectation may knof a but in concern for the welfare of the living. That men may be enabled to predict what course it has to take: that he who has property may trust to have it still: that he ho meditates guilty may look for punishment, and in the self same guilty for the same punishment.. Why should decisions be uniform? Why should succeeding ones be such as to them? Not because it ought to have been established but because it is established The business of the Judge is to keep the distribution of valuables and of rewards d punishments in the course of expectation: conformable to what the expectation f men concerning them is, or if apprised of the circumstances of each case, as he is he supposes would be. Jeremy Bentham, A Comment on the Commentaries, in A COMMENT ON THE COMMENTARIES AND A FRAGMENT ON GOVERNMENT 196-97J H Burns H.L. A. Hart eds, 1977)10 10/9/00 DRAFT – DO NOT CITE WITHOUT PERMISSION [VOL. #:# additional question of fairness. To some extent, the above evolutionary arguments support the notion that the common law is fair. In a world with perfect information and zero transaction costs, rational, fully-informed judges would resolve disputes in a manner that both maximized not only the welfare of the parties to the dispute, but that of society as a whole. If they did not, the argument goes, parties in future disputes (or affected non-parties) would point out the ill effects of a particular decision, and a rational, fully-informed judge would alter the applicable common law legal rule. If some judges were irrational or ill informed, parties would find other, better judges.43 Notwithstanding these weaknesses, there are strong arguments that the common law is a fair method of dispute resolution because it protects parties’ expectations. The credibility of common law adjudication is based on the notion of replicability, i.e., that courts employ consistent methodologies across cases.44 Numerous scholars and commentators have focused on the preservation of expectations through replicable decision-making as justifying the fairness of common law. Melvin Eisenberg has noted that disputes in the U.S. during the nineteenth century often relied on usages, and therefore by definition depended on the behavior and expectations of private parties.45 Justice Cardozo believed in the general rule of following precedent to ensure that private parties’ rights and beliefs would be protected in an evenhanded, consistent, and fair manner.46 Jeremy Bentham – an opponent of common law generally – advocated a predictable judicial framework to protect parties’ expectations, saying that “[t]he business of the Judge is to keep the distribution of valuables and of rewards and punishments in the course of expectation.”47 Holmes, in his story about the judge in the churn redistribution scenarios underlying the normative force of Kaldor-Hicks efficiency may not occur. 43 The weaknesses of this argument are addressed in detail in Part II.B. For now, it is sufficient to note that judges might be irrational and typically do not have perfect information. See discussion infra at Part V.B. Moreover, private parties may face transaction costs or other insurmountable obstacles in finding better judges. 44 See TULLOCK, supra note 23, at 3. 45 See EISENBERG, supra note 2, at 38 (describing courts adopting miners’ usages as rules of law in mining claims, and whalers’ usages as rules of law in disputes of the property rights of harpooned whales). 46 See Mark D. Hinderks & Steve A. Leben, Restoring the Common in the Law: A Proposal for the Elimination of Rules Prohibiting the Citation of Unpublished Decisions in Kansas and the Tenth Circuit, 31 WASHBURN L.J. 155, 171 n.96 (1992). 47 “The deference is that due to the determination of former judgments is due not to their wisdom, but to their authority: not in compliment to dead men’s vanity, but in concern for the welfare of the living. That men may be enabled to predict the legal consequences of an act before they do it: that public expectation may know what course it has to take: that he who has property may trust to have it still: that he who meditates guilty may look for punishment, and in the self same guilty for the same punishment. . . . Why should decisions be uniform? Why should succeeding ones be such as to appear the natural and expected consequences of those preceding them? Not because it ought to have been established, but because it is established. . . . The business of the Judge is to keep the distribution of valuables and of rewards and punishments in the course of expectation: conformable to what the expectation of men concerning them is, or if apprised of the circumstances of each case, as he is, he supposes would be.” Jeremy Bentham, A Comment on the Commentaries, in A COMMENT ON THE COMMENTARIES AND A FRAGMENT ON GOVERNMENT 196-97 (J.H. Burns & H.L.A. Hart eds., 1977)
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