12 10/9/00 DRAFT-DO NOT CITE WITHOUT PERMISSION VOL# legislators, who may be captured by particular individuals or institutions $4 Also implicit in this argument is the notion that common law legal rules evolve over time to reflect the values and practices of society in a more current and accurate manner than statutes can Common law is passive and evolves in response to changes in the behavior of disputants. Common law rules are more adaptable than codified rules. As society changes judges can quickly" alter the relevant legal rules. Statutes, in contrast, are fixed and difficult to change. The legislature would find it too costly and burdensome to make similar, quick changes to reflect changes in society. Legislation often cannot anticipate future controversies, especially in rapidly changing areas of practice. Legislation necessarily is active, and action requires time and is subject to the political process On the other hand, because common law rules are"sticky, judges lay not change them simply based on a whim. Change must be incremental, requires careful analysis, and is subject to review. In contrast, the legislature, when it is moved to act, may act immediately and on its own, with only that analysis individual politicians facing reelection think necessary, even if the legislative action directly reverses prior law Interestingly, several legal scholars recently have argued that in the area of rapidly evolving technologies-particularly involving telecommunications and the Internet-common law is uniquely able to generate timely rules to govern the actions of sophisticated parties. Melvin Eisenberg has argued that courts, not legislatures have a unique capacity to generate the large body of legal rules a technologically advanced society needs to do its business. Bruce EISENBERG, supre S5 See M. Stuart Madden, The Vital Common Law: Its Role in a Statutory Age, 18 U ARK. LImnE RoCK L. 555(1996)(arguing that an advantage of the common law is Many court systems have implemented so-called"fast track"or"rocket docket"approaches, to speed the resolution of individual cases. See Chris A Carr Michael R Jencks, The Privatization of Business and Commercial Dispute Resolution: A Misguided Policy Decision, 88 KY. L.J. 183, 197 n. 34 (2000)(citing several articles describing such systems). Other courts, such as those in the Southern District of New York, resolve cases more slowly, and instead spend more LET COMMON RULE THE TELECOSM8, 206(1997); Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U CHI. LEGAL F 207, 216(1996); Lawrence Lessig, The Path of Cyberlaw, 104 Y ALE LJ. 1743, 1752(1995). I explicitly consider arguments about the viability of common law as compared to statutory or civil law infra at Part IlL.A. Our society has an enormous demand for legal rules that actors can live lan, and settle by. The legislature cannot adequately satisfy this demand. The capacity of a legislature to generate legal rules is limited, and much of that capacity must be allocated to the production of rules concerning governmental matters, such as spending, taxes, and administration, rules that are regarded as beyond the courts competence, such as the definition of crimes; and rules that are best administered by a bureaucratic machinery, such as the principles for setting the rates charged by regulated industries. Furthermore, our legislatures are normally not staffed in a manner that would enable them to perform comprehensively the function of establishing law to govern action in the private sector. Finally, in many areas the flexible form of a judicial rule is preferable to the canonical form islative rule. Accordingly, it is socially desirable that the courts should act to enrich that supply of legal rules that govern.. [business] conduct-not by taking on12 10/9/00 DRAFT – DO NOT CITE WITHOUT PERMISSION [VOL. #:# legislators, who may be captured by particular individuals or institutions.54 Also implicit in this argument is the notion that common law legal rules evolve over time to reflect the values and practices of society in a more current and accurate manner than statutes can. Common law is passive and evolves in response to changes in the behavior of disputants. Common law rules are more adaptable than codified rules.55 As society changes judges can quickly56 alter the relevant legal rules. Statutes, in contrast, are fixed and difficult to change. The legislature would find it too costly and burdensome to make similar, quick changes to reflect changes in society. Legislation often cannot anticipate future controversies, especially in rapidly changing areas of practice. Legislation necessarily is active, and action requires time and is subject to the political process. On the other hand, because common law rules are “sticky,” judges may not change them simply based on a whim. Change must be incremental, requires careful analysis, and is subject to review. In contrast, the legislature, when it is moved to act, may act immediately and on its own, with only that analysis individual politicians facing reelection think necessary, even if the legislative action directly reverses prior law. Interestingly, several legal scholars recently have argued that in the area of rapidly evolving technologies – particularly involving telecommunications and the Internet – common law is uniquely able to generate timely rules to govern the actions of sophisticated parties.57 Melvin Eisenberg has argued that courts, not legislatures, have a unique capacity to generate the large body of legal rules a technologically advanced society needs to do its business.58 Bruce 54 See EISENBERG, supra note 2, at 4-5. 55 See M. Stuart Madden, The Vital Common Law: Its Role in a Statutory Age, 18 U. ARK. LITTLE ROCK L.J. 555 (1996) (arguing that an advantage of the common law is its adaptability). 56 Many court systems have implemented so-called “fast track” or “rocket docket” approaches, to speed the resolution of individual cases. See Chris A. Carr & Michael R. Jencks, The Privatization of Business and Commercial Dispute Resolution: A Misguided Policy Decision, 88 KY. L.J. 183, 197 n.34 (2000) (citing several articles describing such systems). Other courts, such as those in the Southern District of New York, resolve cases more slowly, and instead spend more time writing a smaller number of careful, often lengthy, opinions. 57 See PETER HUBER, LAW AND DISORDER IN CYBERSPACE: ABOLISH THE FCC AND LET COMMON RULE THE TELECOSM 8, 206 (1997); Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 216 (1996); Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1752 (1995). I explicitly consider arguments about the viability of common law as compared to statutory or civil law infra at Part III.A. 58 “Our society has an enormous demand for legal rules that actors can live, plan, and settle by. The legislature cannot adequately satisfy this demand. The capacity of a legislature to generate legal rules is limited, and much of that capacity must be allocated to the production of rules concerning governmental matters, such as spending, taxes, and administration, rules that are regarded as beyond the court’s competence, such as the definition of crimes; and rules that are best administered by a bureaucratic machinery, such as the principles for setting the rates charged by regulated industries. Furthermore, our legislatures are normally not staffed in a manner that would enable them to perform comprehensively the function of establishing law to govern action in the private sector. Finally, in many areas the flexible form of a judicial rule is preferable to the canonical form of a legislative rule. Accordingly, it is socially desirable that the courts should act to enrich that supply of legal rules that govern . . . [business] conduct – not by taking on