Law-and-economics: why Gordon Tullock
prefers Napoleon Bonaparte over the Duke
of Wellington; and why he may end up on
St. Helena
Jennis J. Biser
Public Choice
ISSN 0048-5829
Public Choice
DOI 10.1007/s11127-013-0083-9
1 23
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DOI 10.1007/s11127-013-0083-9
L I T E R AT U R E S U RV E Y
Law-and-economics: why Gordon Tullock prefers
Napoleon Bonaparte over the Duke of Wellington;
and why he may end up on St. Helena
Jennis J. Biser
Received: 3 April 2013 / Accepted: 5 April 2013
© Springer Science+Business Media New York 2013
Abstract Most scholars in the field of law-and-economics lean to the view that the common
law is efficient. Tullock, however, argues that the common law is inefficient and suggests
dramatic modifications to the American legal system, transforming it from a common law
system to a civil code system and abandoning the adversarial proceedings in favor of an
inquisitorial process. This essay summarizes and critically evaluates the thrusts of Tullock’s
1988 article and his 1997 book, which, together direct a full-frontal attack on the AngloSaxon common law system.
Keywords Gordon Tullock · Efficiency of the common law hypothesis · English rule ·
American rule · Law-and-economics
1 Introduction
Gordon Tullock’s three books on law and economics are The Logic of the Law (Tullock
1971/1987), Trials on Trial (Tullock 1980), and The Case Against the Common Law (Tullock 1997). In addition, he has penned a number of journal articles, most notably his 1988
contribution, ‘Defending the Napoleonic code over the common law” (Tullock 1988). This
essay summarizes and critically evaluates the thrusts of Tullock’s 1988 article and his 1997
book, which, together direct a full-frontal attack on the Anglo-Saxon common law system.
Like Napoleon at Waterloo, one stands in awe of the fighting spirit of Napoleon, while sensing that his charge against the Iron Duke ultimately falls short, allowing the late-arriving
Prussian cavalry general, Prince Blucher to turn the tide of battle and to relegate the author
of the Napoleonic Code to the remote island of St. Helena.
Most scholars in the field of law-and-economics lean to the view that the common law is
efficient; the source of most divergence of opinion stems from various theories of why the
J.J. Biser ()
Department of Accounting, Finance and Economics, Austin Peay State University, Clarksville,
TN 37044, USA
e-mail: [email protected]
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common law is efficient.1 Richard Posner (1986) and others at the University of Chicago
hold that view. Guido Calabresi (1970) and others at Yale argue that efficiency should be one
goal of the courts, but that fairness and distributive justice are also important, and challenge
the positive claims by Chicagoans. Tullock’s work provides arguments Yale could use to
undermine Chicago’s positive claims (Rose-Ackerman 1987: 182).
Running counter to the mainstream view, Tullock (1997) argues that the common law is
inefficient and that the courtroom has devolved into a stage on which many actors play divergent roles. Tullock suggests dramatic modifications to the American legal system, transforming it from a common law system to a civil code system and abandoning the adversarial
proceedings in favor of an inquisitorial process.
Tullock—a founding father of the public choice research program—is quite comfortable
working across disciplines and stirring the intellectual cauldron. He is a lawyer by training
but described as a “natural economist’ (Buchanan 1987: 9). Despite, or perhaps because of,
taking just one course in economics (Rowley and Houser 2012: 4), Tullock brings a unique
perspective to the economic analysis of the common law. As with so many of his scholarly
contributions, Tullock resurrected the discussion of a question widely believed to have been
settled long ago.
2 Tullock on the common law
In The Logic of the Law (1971/1987), Tullock provides a critical review of substantive law
and legal procedure in the United States and identifies the weak link of Chicago law-andeconomics. In Trials on Trial (1980) and his monograph, The Case Against the Common Law
(1997), Tullock argues that the common law is economically inefficient. Each of these utilized a writing style “more appropriate for policy-makers than for lawyers” (Rowley 2012:
41), thereby limiting Tullock’s influence over the legal profession. Goetz refers to the style
of Tullock’s work in this area as “uncongenial to legal scholars” and remarks that “the substance itself is inherently nettlesome to lawyers” (Goetz 1987: 172). In the spirit of debate,
let us take a closer look at the Case Against the Common Law. Tullock (1997) focuses
there on the common law as developed through judicial precedent in criminal, tort, property
and contract cases. He outlines two social functions of the court: (1) resolution of disputes
and (2) supplying legal rules. Tullock lays out four foundational principles that govern the
creation and evolution of law through the courts in the common law system: objectivity,
support, replicability and responsiveness.
First, the courts derive legitimacy from objectivity and, Tullock argues, the courts have
failed in that regard. Next, the rules created by the courts must be supported by the general
standards of society or special standards of the legal system. Tullock contends that the common law has lost this support and legitimacy through a decline of the role of precedent and
stare decisis during the second half of the twentieth century. Third, the legal profession must
be able to replicate the process of judicial reasoning, thus requiring the courts to employ a
consistent methodology across cases.
1 Parisi (2004) provides a concise outline of the scholarship in this area. Coase (1960) is credited with the
earliest statement of the efficiency of the common law hypothesis. Major contributions are Ehrlich and Posner
(1974), Rubin (1977) and Posner (1994). Priest (1977) extended Rubin’s analysis. Tullock (1988, 1997)
presents his opposition to the mainstream view.
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The courts, Tullock asserts, have also failed to maintain this replicability. Finally, the
courts must be responsive to the legal profession, both in a particular case and to the profession as a whole. In the second half of the twentieth century, this responsiveness has declined
due to the growing politicization of the bench and the expanding role of non-specialist juries.
Doctrinal stability, achieved in the common law through stare decisis, is central to the
social functions and foundational principles of the common law. In resolving disputes, stare
decisis imparts the courts with the necessary objectivity that therefore garners support and
legitimacy, making the rules that emerge responsive to legal discourse and the law and judicial reasoning replicable. Stare decisis is also critical to the courts’ role in supplying legal
rules. While courts must protect existing rules on which individuals have come to rely, there
must also be room for the development of new legal rules. Changes must not be so dramatic as to upset the doctrinal stability so critical to the rule of law. Tullock’s (1997: 402)
main thesis in the monograph is that the “retreat from stare decisis is a predictable consequence of the institutional characteristics of the U.S. legal system and that this retreat is now
sufficiently extensive as to challenge the validity of the common law system.”
Tullock analyzes, from a public choice perspective, the various players who perform on
the stage of the US legal system, a system based on adversarial proceedings, in a rational
expectations, utility maximization framework. The very structure of the court system in the
United States leaves the legal system open to public choice pressures.
Appointed judges work within a bureaucratic court system while elected judges are open
to direct political pressure. Publicly provided at zero or near zero prices, the US courts are
vulnerable to the tragedy of the commons and subject to non-price rationing. Delay often
favors the party with the deepest pockets in civil cases and, in criminal cases, encourages
unwarranted prosecution by the state and supplies defendants with incentives to stall. Negative externalities on society result from the competition between civil and criminal cases for
court system resources. Tullock suggests that market-clearing prices for the court system
would reduce the volume of litigation and avoid the tragedy of the commons, though he
draws attention to the special interests that would resist such a change.
The Constitution’s Framers adopted various features of the American court system to protect judges from political pressure and to ensure judicial independence. Yet, Tullock outlines
how these protections fall short. The nomination and confirmation of judges is overtly political and the recruitment of nominees is open to special interest influences. Removal from
office is not possible; however, federal judges are susceptible to pressure from the president
and Congress as evidenced by FDR’s court packing scheme in 1937. Supreme Court Justice
Owen Roberts sided with the more liberal members of the Court in the “switch in time that
saved nine”.2 Federal judges are further open to political pressure as they rely on Congress
for their annual office budgets and the executive branch must enforce its judgments. Guarantees against nominal salary cuts do not protect the real wages of judges in times of inflation
or rising costs of living.3
Judges take an oath to uphold the Constitution; thus, their private ideology or special interests should have limited impact on judicial decision-making. Tullock reviews the research
of various authors into the motivations of judges. He concludes that factors other than economic efficiency, including a judge’s personal agenda, may influence judicial decisions.
Lawyers were not an important element of the early English common law system. Early
entrants to the legal profession served the interests of the King. License requirements limited
2 Shughart (2004) provides a thorough analysis of the cases and events occurring during this time period.
3 See Fleck and Hanssen (2013), Shughart (2004) and Shughart and Tollison (1998) for additional analyses
of these issues.
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entry into the profession and created monopoly power for the favored few. As legal procedures became more complex, judges increasingly came from among the ranks of lawyers.
The American colonies established regulations for the legal profession: training standards
and educational requirements, the bar exam and licensure. Each facet of this regulatory
structure serves to reinforce monopoly power.
Despite all its barriers to entry to the legal profession, America has more lawyers per
capita than any other country in the world. This fact can be traced to the adversarial system of
litigation; a system that fosters competition between lawyers. An overabundance of lawyers
leads them to press for inefficient laws to inflate the demand for legal services. Americans
increasingly use the legal system to effect wealth redistribution. In the adversary system, the
goal is not seeking the truth in a matter; rather, lawyers aim simply to win. The outcome of
a case comes down to the relative skill of competing lawyers who manipulate the jury and
twist a complex system of procedural rules to their advantage.
There are two types of lawyers: trial lawyers argue cases while another class of lawyers
interprets current law, advising clients and spending much of their time writing contracts.
Trial lawyers gain from ambiguities in the law and, like special interest lobbyists, use government to achieve wealth redistribution in favor of their clients. Lawyers who specialize
in contracts prefer complicated codifications of law such that individuals are willing to pay
high rates. Law-writing specialists also gain from wrangling with opposing counsel over
loopholes resulting from ambiguities remaining in the law. Competitive rent-seeking in this
manner may increase transaction costs beyond what Tullock refers to as the “social product”
(Tullock 1997: 423).
The modern jury is very different from early Greek or English juries. Derived from the
Magna Carta (1215), the right to trial by jury served as a protection against tyranny. The
Founding Fathers incorporated juries into the Bill of Rights in the Fifth, Sixth and Seventh
Amendments. Until 1835, the jury had the right to decide the law as well as the facts of a
case. Even today, Americans hold jury verdicts in high regard, though Tullock’s account of
the jury selection process leaves doubt that contemporary juries are qualified or equipped to
find the underlying truth in a given case and mete out justice.
Witnesses today also differ greatly from witnesses of the past. Experts-for-hire and complicated rules of evidence block the jury from getting to the truth of a matter. Dishonesty is
difficult for jurors to detect and human beings, even if they try to recount an event honestly,
make errors. Juries, also made up of fallible humans, try to decipher the credibility of witnesses throughout the process of examination and cross-examination. Tullock suggests that
technological tools, or “lie detectors”, would be one way for the jury to gather more reliable
information.
Tullock then sets out to demonstrate how all of these actors come together in the American legal system. He outlines the three factors Posner (1979) marshals as evidence that the
common law is wealth maximizing and efficient. Tullock disagrees, arguing that while the
early form of common law may have had some efficiency built in, the system as it stands
today is substantially different and no longer efficient. Utilitarian philosophy has ceded to
growing progressive, even socialist dogma, to rent-seeking behavior through the legal process. Judges and legislatures, increasingly dominated by lawyers, have found ways to benefit
special interests, not least the Association of Trial Lawyers of America.4
Tullock takes particular aim at Posner’s argument that the legal process results in the
emergence of efficient legal rules. In a sort of evolutionary process, inefficient rules invite
4 In 2006, the Association of Trial Lawyers of America changed its name to the American Association for
Justice (Rubin and Shepherd 2013).
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litigation of disputes while efficient rules will stand, thus discouraging litigation. Tullock
again points to legal rent-seeking to refute this account of the efficiency of the common law.
Tullock views the common law system of the United States as a tragedy of the commons.
US litigation costs are high relative to other countries. Tullock outlines institutional characteristics of the common law system in England and Wales that reduce litigation. In England
and Wales, the loser pays all costs and contingency fee arrangements are, for the most part,
prohibited. All civil trials are bench trials. Evidence indicates that the United States does
not achieve greater accuracy by spending so much money on litigation. Evidence regarding
errors of fact, Tullock argues, justifies a switch from jury trials to bench trials.
Early English common law evolved out of a system of competing courts and a judgment
did not become accepted as precedent until several judges had come to the same decision
in similar cases. The Founding Fathers created the Supreme Court as the final arbiter. As a
result, the common law no longer shifted and changed gradually. The justices of the high
court serve now as lawmakers, ignoring precedent at times and handing down decisions that
change the law of the land in an instant.
Tullock argues that three areas of difference make the Napoleonic civil code system superior to the Anglo-Saxon common law system. The civil code system employs an inquisitorial process rather than an adversarial one, does not use a jury in most cases, and has few,
if any, restrictions on evidence. Tullock describes the way in which criminal cases move
through the civil code system and some of the background of that system. He asserts that
the European system is superior, in that it achieves more accurate results at a lower cost than
common law courts in the United States. As evidence, he points out the growth of arbitration
as Americans opt out of the court system.
3 Transformation reconsidered
Based on Tullock’s work in other areas, Goetz (1987) supplies a list of predictions about the
expected nature of Tullock’s analysis of certain legal matters, including the relative question of the merits of the adversarial and inquisitorial systems. He concludes that Tullock’s
legal work omits many expected results and some “has what paradoxically might be regarded as a certain affirmatively un-Tullockian flavor” while his work in other areas of law
leads to conclusions “we might expect within the framework of his overall methodological
and ideological thrust (Ibid.: 178). Goetz also notes that Tullock “loves a good argument”
(Ibid.: 179); thus, it is necessary to dissect his objections to the common law in the context
of his other writings on the Anglo-Saxon system.
Tullock seems to be making two separate arguments in The Case Against the Common
Law. First, he argues for replacement of the common law system with a civil code system.
He prefers legislative rulemaking as opposed to judge-made law. Second, he argues for a
change in courtroom procedure, namely, replacing the adversarial system and the jury with
an inquisitorial system wherein the judge decides matters of facts and law.
3.1 Founding principles
To evaluate the American legal system as it currently stands, it is necessary to understand
its origins at the founding of the nation. In the U.S. Constitution, the Founders are silent
on most of the actual details of the Supreme Court and federal court structure. Article III
provides limited guidance on the procedures of the federal courts and leaves the rest up to
Congress. They did include requirements for specific protections for judges and trial by jury
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for crimes. One need not look further than the Declaration of Independence to understand the
inclusion of these details. In that famous document, the Founders formally broke ties with
Great Britain.5 The Founders sought to justify this action by outlining a list of grievances
against the King. Among those grievances, were included:
He has obstructed the Administration of Justice, by refusing his Assent to Laws
for establishing Judiciary powers. He has made Judges dependent on his Will alone,
for the tenure of their offices, and the amount and payment of their salaries. . . For
depriving us in many cases, of the benefits of Trial by Jury. For transporting us beyond
Seas to be tried for pretended offenses. (Kurland and Lerner 1987, Vol. 1: 10)
In 1775, Thomas Jefferson wrote that parliament has “extended the jurisdiction of courts of
admiralty beyond their antient limits thereby depriving us of the inestimable right of trial by
jury in cases affecting both life and property and subjecting both to the arbitrary decision of
a single and dependent judge” (Kurland and Lerner 1987, Vol. 4: 219).
The Articles of Confederation, adopted in the midst of the Revolution, did not vest in the
national government many of the powers normally conferred on a central power. This weak
central government proved unable to maintain the union among states after the common
enemy had been driven out. The Founding Fathers met under the pretext of amending the
Articles. Rather than patch up a broken system, they drafted the United States Constitution,
creating a new form of government.
During the ratification debate, James Madison, Alexander Hamilton and John Jay made
the case in favor of ratification in The Federalist (1788/1952). Hamilton and Madison laid
out the imperfections of the Confederation in The Federalist Nos. 15–20. In The Federalist
Nos. 21–22, Hamilton outlines the major flaws of the union under the Articles, ending with
an extended discussion of the judiciary.
A circumstance which crowns the defects of the Confederation remains yet to be
mentioned—the want of a judiciary power. Laws are a dead letter without courts to
expound and define their true meaning and operation. The treaties of the United States,
to have any force at all, must be considered as part of the law of the land. Their true
import, as far as respects individuals, must, like all other laws, be ascertained by
judicial determinations. To produce uniformity in these determinations, they ought
to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal
ought to be instituted under the same authority which forms the treaties themselves.
(The Federalist No. 22: 83)
Hamilton went on to reject the notion of each state having a court that served as final arbiter.
If there is in each State a court of final jurisdiction, there may be as many different
final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges
of the same court differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the
5 We, Therefore, the Representatives of the United States of America, in General Congress, Assembled, ap-
pealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by
Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies
are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the
British Crown, and that all political connection between them and the State of Great Britain, is and ought to
be totally dissolved (Kurland and Lerner 1987, Vol. 1: 10).
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rest, possessing a general superintendence, and authorized to settle and declare in the
last resort a uniform rule of civil justice. (The Federalist: 84)
Thus, according to Hamilton, the Supreme Court did not serve as a way to simply tidy up
the common law, as argued by Tullock (1997: 445). One federal court of final jurisdiction
was required to avoid confusion and bickering among the states and served to engender
the respect and confidence of foreign nations. The Supreme Court was a necessary element
of the new union, “where the frame of the government is so compounded that the laws
of the whole are in danger of being contravened by the laws of the parts” (The Federalist
No. 22: 84). Hamilton also warned that state courts may be subject to “the bias of local views
and prejudices, and from the interference of local regulations” (ibid.: 84) In this passage,
Hamilton clearly recognized the fallibility of men, even those elevated to the bench and
relied upon by society to render impartial judgment.6
The Framers included a system of checks and balances in the new structure of government set out in the Constitution. Within that system, no single branch of government unilaterally can take control of the sovereign power. Without agreement on a particular issue, the
inability to act protects the rights of the people by preserving the status quo. Madison and/or
Hamilton argued in The Federalist No. 51 that this separation of powers was essential, yet
the judicial branch enjoys greater independence so that it can thwart abuses by the legislative
and executive branches.
The Founders sought to protect the independence of the judiciary and limit political influence on the Court by including various provisions in the Constitution. Article 2, Sect. 2
requires the President to seek the advice and consent of the Senate for appointments to the
Supreme Court. Justices on the Court hold office “during good behavior” and assurances of
compensation. As Tullock (1997: 414–417) notes, these protections have not been sufficient
to place Justices beyond the reach of political impulses.
The Federalist Papers provide insight into the thoughts of the Founders with respect
to the operation of the judicial branch and the structure of the new form of government
created by the Constitution. Hamilton provides a detailed discussion of the executive and
judicial branches in The Federalist Nos. 66–77. He outlines the powers and limitations on
the judiciary in The Federalist Nos. 78–83.
The Framers of the Constitution viewed the judiciary as a check on the legislature.
Though there is no explicit provision in the Constitution authorizing judges to review legislation, support for judicial review can be found in Article VI, Paragraph 2, a section known
as the Supremacy Clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority
of the United States, shall be the supreme Law of the land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding. (Kurland and Lerner 1987, Vol. 1: 34)
Hamilton argued that the power of the judiciary to review legislation serves to uphold constitutional limitations on legislative power.
6 In the Fort Hill Address of 1831, John Calhoun openly and unambiguously identified himself with the nulli-
fication cause. In that speech, he proclaimed that the right of state interposition was ‘the fundamental principle
of our system’ and that the federal government must accept that right in order to keep the Constitution and the
Union secure. By embracing the concept of state imposition, Calhoun dismissed the 1803 ruling in Marbury
v. Madison, a ruling that claimed the power of constitutional interpretation exclusively for the judicial branch.
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Limitations of this kind can be preserved in practice no other way than through
the medium of the courts of justice; whose duty it must be to declare all acts contrary
to the manifest tenor of the constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing. (The Federalist No. 78: 230)
Hamilton provided specific guidance for judicial review of legislation in The Federalist
No. 78.
A constitution is in fact, and must be, regarded by the judges as a fundamental law.
It therefore belongs to them to ascertain its meaning as well as the meaning of any
particular act proceeding from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior obligation and
validity ought of course to be preferred; or in other words, the constitution ought to
be preferred to the statute, the intention of the people to the intention of their agents.
(The Federalist No. 78: 231)
The Framers of the Constitution intended the Court to act as a check on legislative power.
Hamilton also argued that the legislature cannot be presumed to serve as judge of its own
actions. Judicial review as a check on legislative power, he argued, necessarily follows from
the logic of the framework of government laid out in the Constitution.
It is far more rational to suppose that the courts were designed to be an intermediate
body between the people and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The interpretation of the laws is the
proper and peculiar province of the courts. (The Federalist No. 78: 231)
The issue of judicial review came before the Supreme Court in Marbury v. Madison (1803).
The Supreme Court found that the very structure of the Constitution permitted the Court to
declare acts of Congress to be unconstitutional. Chief Justice Marshall, writing the opinion
of the Court, justified this decision by pointing to the consequences of an alternate finding:
“The distinction between a government with limited and unlimited power is abolished, if
those limits do not confine the persons on whom they are imposed, and if acts prohibited
and acts allowed, are of equal obligation” (Marbury v. Madison 1803: 177–178).
The Founders devised the separation of powers and the system of checks and balances to
curb abuses by any one branch of government. The executive branch is charged with the task
of enforcing the Constitution and the laws enacted by Congress operate as a check on the
legislature through the president’s veto power. The president appoints judges to the federal
courts and justices to the Supreme Court, subject to the process of advise and consent by the
Senate. The legislative branch is the strongest of the three branches. Congress can override
a veto by the president.
At the time of the ratification of the Constitution, the right to trial by jury was considered
an important safeguard of individual rights against the government as a whole.
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any
difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. (The
Federalist No. 83: 245–246)
Various state constitutions included the right to a jury trial among those rights laid out in
their own bills of rights (Kurland and Lerner 1987, Vol. 5: 353). Article 2 of the Constitution
provided for jury trials in criminal matters; however, one of the arguments in opposition
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to the Constitution during the ratification debate was the absence of a similar provision
requiring jury trials for civil matters.
The objection to the plan of the convention, which has met with most success in
this state, and perhaps in several of the other states, is that relative to the want of a
constitutional provision for the trial by jury in civil cases. (Emphasis as in the original
The Federalist No. 83: 244)
Those opposed to the new Constitution argued that the silence of the Constitution on civil
trial by jury amounted to abolishing such trials. Hamilton argued that the “power to constitute courts, is a power to prescribe the mode of trial” (Kurland and Lerner 1987: 244),
effectively leaving the matter in the hands of the legislature.
The Founders assuaged the opponents of ratification by providing additional protections
for the right to a trial by jury in the Bill of Rights. The first ten amendments to the Constitution were thought to be unnecessary by many of the Founders and the inclusion of a
statement of basic rights was fiercely debated. Madison7 and Hamilton8 felt that including
a bill of rights was unnecessary and possibly dangerous. Thomas Jefferson, on the other
hand, considered a bill of rights to be essential.9 Madison offered 12 proposals to the House
shortly after ratification of the Constitution.10 Ten of these proposals would form the basis
of the first ten amendments, known as the Bill of Rights.
The Bill of Rights included various protections for individual rights tied to the operation of the judiciary. The Fourth Amendment protects citizens against unlawful search and
seizure. The Fifth Amendment guarantees trial by jury and due process of law. It also guards
against double jeopardy and self-incrimination. The Sixth Amendment outlines the rights of
the accused while the Seventh Amendment lays out some rules of the common law, including the right to trial by jury where more than twenty dollars is in dispute and the prohibition
on reexamination of facts tried by a jury. The Eighth Amendment guards against cruel and
unusual punishments. Ratified just four years after the Bill of Rights, the Eleventh Amendment added further details to the functioning of the federal court system, specifying cases
that are not to be tried in the federal court system.
7 I have never thought the omission a material defect, nor been anxious to supply it even by subsequent
amendment, for any other reason than that it is anxiously desired by others. I have favored it because I
supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an
important light 1. because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson,
the rights in question are reserved by the manner in which the federal powers are granted. 2 because there is
great reason to fear that a positive declaration of some of the most essential rights could not be obtained in
the requisite latitude (Kurland and Lerner 1987, Vol. 1: 477).
8 I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for,
are not only unnecessary in the proposed Constitution, but would even be dangerous (The Federalist No. 84:
252).
9 “Let me add that a bill of rights is what the people are entitled to against every government on earth, general
or particular, and what no just government should refuse, or rest on inference” (Kurland and Lerner 1987,
Vol. 1: 457).
10 I freely own that I have never seen in the Constitution as it now stands those serious dangers which have
alarmed many respectable Citizens. Accordingly whilst it remained unratified, and it was necessary to unite
the States in some one plan, I opposed all previous alterations as calculated to throw the States into dangerous
contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution.
Circumstances are now changed: The Constitution is established on the ratifications of eleven States and a
very great majority of the people of America; and amendments, if pursued with a proper moderation and in a
proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning
opponents, and of providing additional guards in favour of liberty (Kurland and Lerner 1987, Vol. 1: 478).
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Even with these additional details regarding the operation of the courts and the protections for individual rights, the federal court system did not conform to the expectations of the
Framers. Part of the original design of the new form of government set out to guard against
the influence of special interest groups. In The Federalist No. 10, James Madison warns of
these factions and the Founders took specific steps to protect individual rights and the independence of the judiciary. Problems within the judiciary became apparent early on, however.
Writing to Thomas Jefferson in 1823 with the benefit of hindsight, Madison recognized that
judges, in some instances, had abused their positions on the bench.
I am not unaware that the Judiciary career has not corresponded with what was
anticipated. At one period the Judges perverted the Bench of Justice into a rostrum
for partizan harangues. And latterly the Court, by some of its decisions, still more
by extrajudicial reasonings and dicta, has manifested a propensity to enlarge the general authority in derogation of the local, and to amplify its own jurisdiction, which
has justly incurred the public censure. But the abuse of trust does not disprove its
existence. (Kurland and Lerner 1987, Vol. 4: 341)
For Madison at least, the abuses could be addressed and perhaps remedied through the
amendment process.
And if no remedy of the abuse be practicable under the forms of the Constitution,
I should prefer a resort to the Nation for an amendment of the Tribunal itself, to
continual appeals from its controverted decisions to that Ultimate Arbiter. (Ibid.: 341)
The right to trial by jury is an integral part of the protections guaranteed to individuals;
thus, one cannot argue for strict construction of the U.S. Constitution and simultaneously
advocate eliminating jury trials altogether. Certainly though, the Founders could not have
envisioned the changes, outlined by Tullock, that have abridged justice and efficiency in
the American legal system. Perhaps, then, Tullock’s work is a reflection of his frustration
with the system as it has been perverted over time. His work then can be seen as advocating massive reforms to the circus that the modern courtroom has become. This overhaul
is necessary to restore justice to the American legal system and make strides toward efficiency.
3.2 Adversarial versus inquisitorial
Within the American common law system employing an adversarial process in the courtroom, Tullock takes particular issue with the jury and contends that the current system
results in rule by man instead of the rule of law. The inquisitorial system, advocated by
Tullock, takes power out of the hands of the jury and transfers it to the judge. I contend
that getting rid of the jury and letting a judge decide leaves the law open to activist judges
and the potential for ideological abandonment of stare decisis at will. This is rule by one
man instead of rule by 12. Perhaps the problem is more complicated than a simple answer
will permit. Among the issues addressed are the apparent incompetence of the jury, the jury
selection process, overly restrictive rules of evidence, courtroom rhetoric aimed at evoking
emotional responses, and out-of-control damage awards that have little basis in making the
victim whole, even though such awards are typically reduced on appeal.
In the current adversarial system, Tullock cites contingency fees as one reason for the
greater litigiousness in America when compared to that of England and Wales. Lawyers who
take cases on a contingency fee basis open the courts to those who cannot afford proper legal
representation, but encourages ambulance chasing. Is ambulance chasing really the base of
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the problem as framed by Tullock? If the person in the ambulance truly had been injured,
it makes sense that he has legal counsel when the wrongdoer (or his insurance company)
certainly will.
An informed citizenry would certainly bring calls for changes to the American legal system. With respect to the judiciary in the current system, Tullock describes Posner’s concepts
of “going-along voting” and “live-and-let-live opinion-joining” as leisure seeking activities
that come close to logrolling deals. Yet, Tullock dismisses logrolling outright on grounds
that it would evoke public hostility. This explanation perhaps misses an important point
when compared to logrolling among legislators. Rationally ignorant voters are largely unaware of logrolling even though C-SPAN brings live coverage of Congress into America’s
living rooms. Despite demands by Congress, Supreme Court sessions have not yet been open
to cameras. It is doubtful that even this exposure would stimulate Americans to become informed.
Tullock’s view on judges is problematic. Tullock (1997: 451) refers to “visible boot of
the politically active judge” in the US legal system. Yet, he does not explain why judges
will work harder if the adversarial process is replaced by an inquisitorial system where all
responsibility for investigation, determination of fact and interpretation of law rests with the
judge. In another work, Tullock reminds us that judges are people too (Tullock 2000: 39).
In Trials on Trial (1980), Tullock devotes a full chapter to judges, including an analysis of
the incentive problems one might expect from Tullock given the body of his scholarship in
areas outside the law. Yet, in advocating a shift to an inquisitorial system wherein the task of
investigating a case falls on the shoulders of the judge, Tullock places great faith in judges
and their willingness to work at least hard enough to find a sufficient amount of evidence
to make deciding the case possible. Elsewhere, Tullock (2000: 39) argues that judges (and
college professors) are lazy as a result of lifetime tenure and a desire to “maximize their enjoyment of leisure.” Presumably, judges would only work harder in an inquisitorial process
if they no longer enjoyed a guarantee of continued employment. This would open the judges
to political pressure as the Founders warned.
The Founders intended that the jury would serve as a check on the power of the government. English juries played a significant role in standing up to the Crown and were included
in the new form of government devised by the Founders to serve to protect individual rights.
Tullock recognizes this was the reason for including the right to a trial by jury in the Magna
Carta: “The right to a trial by jury was supposed to make tyranny impossible, imposing
a buffer between the king’s will and application of the law” (Tullock 1997: 425). Lehman
(1997) discusses some of the great jury trials in history, providing insight into the changes
in courtroom procedure and rules of evidence that have tied the hands of jurors. “The tyrant
knows that his most serious obstacles are trials by panels of fully informed jurors, and he
lives in fear that they will learn the full extent of their power. Therefore, he must employ
any device to keep juries subservient” (Lehman 1997: 30).
In his Case Against the Common Law, Tullock outlines problems with the use of a jury.
The common understanding, expressed even by Tullock, is that juries are incompetent and
unqualified. He refers to jurors as “ignorant amateurs (Tullock 1997: 451) and as “semiblindfolded, intellectually lame” (Tullock 1997). His detailed description is not flattering:
Juries typically consist, therefore, of individuals of below average intelligence, of
below average income, and of below average productivity. They are made up disproportionately of the old, the lame, and the unemployed. They are selected to reflect
racial and ethnic diversity and implicitly encouraged, therefore, to think of their role
in such terms. (Tullock 1997: 428)
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He notes that the process of jury selection as practiced is quite different from the random
selection that would generate a representative jury of one’s peers (Tullock 1997: 427–428).
Posner (1999) disagrees. He describes the jury selection process and admits that the process
does not result in a random sample; rather, he claims that they “generally are above average
in competence, civic mindedness, and sense of responsibility” (Posner 1999: 25).
Tullock complains of inane rules that inhibit the jurors’ ability to decide the case before
them: “Even the rare, well-qualified jury labors under handicaps that the judge does not
encounter, that extend well beyond the problems imposed by rules of evidence” (Tullock
1997: 439). He then describes various ways that the judge interferes with the jury’s ability
to gather information about the facts and the law. When it comes to legal instructions given
by the judge to the jurors, however, Tullock (1997) cites evidence that “jurors typically
forget some or all of these instructions and that they ignore instructions that they do not
like.” Posner (1999: 54) suggests that “courts greatly exaggerate the efficacy of limiting
instructions” and the instruction itself may “rivet the jurors’ attention to the evidence”. Also,
he notes, “It is not even clear that the jurors pay much attention to the instructions on the
law, as opposed to the instructions to disregard particular evidence” (Posner 1999: 56).
Both Tullock and Posner discuss the behavior of judges. Tullock (1997: 436) exhibits
faith that “professional judges would be fully capable of giving illegally obtained evidence
an appropriate weighting”, yet, he questions the “mental discipline” of a judge to ignore evidence submitted in violation of procedural rules (Tullock 1997: 434). Posner (1999: 21) also
notes concerns that a judge in the adversarial system would be “unable to keep from being
influenced” by evidence deemed to be inadmissible, “may be case-hardened and therefore
less likely to attend to the particulars of a case” (Posner 1999: 22) and “by virtue of their experience may take shortcuts to decision (Posner 1999: 23). Neither scholar leaves the reader
feeling good about decisions handed down from the bench.
Tullock (1997) and Posner (1999) disagree on several points regarding the adversarial
system. Posner (1999: 2) notes that much criticism of the American system is actually a
result of the public scrutiny the system invites. That, while imperfect when compared to the
Utopian ideal, the system “may not be inferior to the feasible alternatives, including the Continental inquisitorial system” (Posner 1999: 3). He also notes a “Close connection between
rules of evidence and the use of the jury” (Posner 1999). Tullock (1997: 434–437) takes aim
at the law of evidence. For example, the hearsay rule bars such evidence, presumably on the
basis that the jury is incapable of weighing adequately this type of testimony (Tullock 1997:
437). Posner (1999: 66) also notes this reason behind the exclusion of hearsay, yet justifies
the rule by noting that allowing it may result in a waste of the court’s time and exceptions
permit some evidence otherwise excluded. Tullock (1997: 429) also charges that expert witnesses, whom he refers to as “professional liars” damage the adversarial system. Posner
(1999: 74) specifies various problems with expert witnesses, but concludes that “(n)one of
these concerns, however, seems especially grave”, laying out his rationale and suggesting
ways to improve the use of experts.
Tullock (1997) argues for scrapping the adversarial system. Posner (1999) notes that actual systems are mixed and suggests some reforms to improve efficiency, including changes
to jury size and selection, the rules of evidence and the procedures of jury trials. Perhaps
both scholars make some good points in the battle, but a strategy to win the war requires a
look into the impact of the imperfections of the system as it stands.
Lehman (1997: 11) shows that when and “where a ‘jury’ errs, it is practically always
because the panel has fallen under the influence or domination of the judge or another outside force”. Lehman’s description of the actions of ordinary men and women on the jury,
“show that when jury panels become subservient to judges the results are disastrous. But
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when jurors throw off judicial shackles, verdicts invariably advanced the people’s liberties”
(Lehman 1997). The people, by way of the jury, can strike down laws enacted by the legislature where the law fails to coincide with their notion of justice: “This supervisory power
of the sovereign people over government is known as jury nullification” (Lehman 1997: 20).
In his discussion of trial lawyers and courtroom tactics, Tullock (1997: 422) speaks disapprovingly of what he refers to as “fireside equities”:
Some attorneys specialize in manipulating the ordinary people who comprise the
jury. In some cases, attorneys seek to persuade the jury to bring in verdicts that are
contrary to law, to fall back on what are called the fireside equities, for example, to
nullify a clear criminal conviction. Judges sometimes make efforts to discipline such
breaches of legal ethics. Unfortunately, many judges are tarred with the same feathers
as the lawyers and favor the fireside equities over the established law.
Is what he describes actually the power of jury nullification applauded by Lehman? Juries,
given information about three strikes rules and mandatory minimum sentences may choose
to acquit a defendant rather than see him do life in prison for a minor charge. Elsewhere,
Tullock (1997: 439) criticizes judges who engage in tactics such as “blindfolding the jury”.
Within the current system, the jury certainly needs more information to make informed
decisions, though it is not clear that the source of information, whether originating with the
judge or the lawyers, is important. Tullock, in his book Economic Hierarchies, Organization and the Structure of Production, seems to think more highly of the jury system than
expressed in The Case Against the Common Law. “The people of the United States, by way
of the jury, are able to obtain what is probably a fairly good implementation of their ideas
on law enforcement without any real supervision at all” (Tullock 1992: 396). Tullock voices
his approval of the jury deviating from the written law. “To repeat, a jury does not mean
that the written law will necessarily be carried out if there is some conflict between it and
moral principles. . . . In our system the jury rarely pays too much attention to the law” (Tullock 1992: 396). Yet, in The Case Against the Common Law, Tullock (1992: 426) dismisses
nullification as unlawful and charges that those who do, act “with malice” (Tullock 1992:
429).
It may be that the power of jury nullification is perhaps the greatest reason to maintain
the jury system and explains the attempts by judges to tie the hands of jurors. To be effective
as a tool for binding the government to the role envisioned by the Founders as servant of the
people; however, the power of jury nullification must be exercised. This is only possible if
the jury has access to more information, evidence and the tools necessary to make informed
decisions on matters of fact and law.
3.3 Common law versus civil code
Common law judges face tensions between stare decisis, the doctrinal stability that it engenders and the evolution of new legal rules. This tension opens more questions than it resolves.
How strictly should judges adhere to stare decisis? Should a judge decide a current case on
the basis of precedent if the earlier decision resulted from an activist judge with a “living
constitution” view? If individuals have come to rely on precedent that runs counter to the
strict construction of the Constitution, does doctrinal stability require that subsequent judges
be bound by bad law? If a judge rejects precedent to return to strict construction of the Constitution, is he considered an activist? Does that judge violate doctrinal stability? In many
ways, judicial discretion makes it impossible to answer these questions definitively.
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In addition to the various interpretations of the weight of precedent, judges are not immune from ideological bias and political pressure. One can observe this on the part of justices on the Supreme Court by analyzing the decisions of the Court when the balance of
ideology changes as new appointees replace retiring justices. Tullock (1997: 445) notes a
decade of judgments that violate private property rights following the Penn Central Transportation Company case (1978) and an uneven drift back since 1988. The Court record
has been quite mixed in recent years, though the Kelo v. City of New London decision in
2005 was a sharp blow to property rights. The backlash that followed animated many state
legislatures to strengthen property rights in state constitutions, though many did not go far
enough. Recent appointments to the US Supreme Court under a left-leaning president have
merely replaced old liberals with new liberals; however, the five-to-four voting split on the
Court hangs in the balance. President Obama’s second term certainly will influence Court
decisions with respect to property rights and the role of government more generally.
Theoretically, a judge’s ideology should not be a factor within the civil code system.
Legislators write the law and thereby bind the judges’ hands. Tullock’s work in other areas
makes his recommendation for a move to civil code system problematic. Under the rising
influence of trial lawyers, moving to a civil code system would not eliminate the rent-seeking
that Tullock cites as one of the weaknesses of the common law system. Congress is full of
lawyers who increasingly use special interest groups actually to write the text of proposed
laws. With rationally ignorant voters, the move to a civil code system would eliminate the
check on the legislature provided by those judges not yet corrupted.
Tullock cites the rising use of arbitration in the United States as evidence that rational
individuals recognize the inefficiencies of the American public sector legal system and have
decided to opt out in favor of a lower cost method of dispute resolution that operates much
like the inquisitorial process. Arbiters are selected/hired at least in part on the basis of reputation by informed consumers. This is much different from the public courts. When judges
are elected to lower courts, voters will remain rationally ignorant. Though when faced with
a case that might garner public attention, these judges are pressured to appeal to the masses
rather than make an unpopular ruling and risk voter backlash. Where judges are appointed,
the selection and confirmation process is often pure politics. Also, Posner (1999: 29) observes that “cases selected for arbitration differ systematically from those adjudicated in
courts”.
Tullock makes his case against the common law, yet leaves many important questions
regarding a civil code system unanswered. He notes that decisions handed down in cases in
a civil code system can be appealed. This takes a bit of power out of judges in the lower court
and merely transfers that power to the appellate judge. How are judges selected in civil code
system? Whether by election or appointment, there are difficulties inherent in choosing men
to hold such power. If the high court in a civil code system can decide constitutional issues
when asked by lower courts, without waiting for a legal dispute, what is it that actually slows
the evolution of the law, as Tullock contends?
Yet, at a more basic level, Tullock’s own work undermines his proposal to replace the
common law with a civil code system. While dismantling Posner’s argument that the legal process resembles the market, Tullock (1997: 450) notes that the legal system works
within the reality of bureaucracy with rent seeking and all that this entails. Charles Rowley
(2005: viii) has written that Tullock’s The Politics of Bureaucracy, “opened a major field
of research that challenged Max Weber’s view that bureaucrats are impartial servants of the
public good.” Within that book, Tullock takes a much more favorable view of the federal
judiciary than he does in The Case Against the Common Law. “On the whole, however, the
system of the independent judiciary has been successful” (Tullock 1965: 67).
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There, Tullock (1965) also evaluates the operation of the court system with respect to the
goal of justice and carrying out the wishes of society.
If the duty of the court is the exact enforcement of the laws enacted by the legislature, then the federal courts do a very poor job. But, on the other hand, if this duty
is conceived as that of doing substantial justice in accordance with the mores of the
culture, the courts do a reasonably good job.
Tullock (1965: 68) argues that the role of the judge is not to carry out the will of the legislature; rather, the courts function to enforce societal norms.
If a statute, enacted by the legislature, when applied to a given case should be in
complete accord with the ideas of right and wrong held by the judge, no issue arises,
and the judge will follow the statute. The same decision would have probably been
reached, however, without the statute. On the other hand, if the “law”, as applied to
a specific case, should deviate from the ethical norms of the judge, the court will
normally give lip service to the law and enforce the ethical norms.
Tullock (1965: 69) also speaks approvingly of judicial independence, echoing the sentiments of the Framers of the Constitution.
The judge in an American federal court need not fear that he will be overthrown
if he takes an unpopular stand. He is safer in pursuing a course of action to which
the populace objects than is the dictator. This independence of the judge provides
protection for the citizen from the arbitrary actions of the rest of the governmental
structure.
Tullock (1997: 451), countering Posner, notes that activist judges within the common law
system do not rule with an invisible hand. Elsewhere, Tullock (1965: 68), seems to view this
in a favorable light.
Law schools normally define “law” as “what judges will, in fact, do,” recognizing
that the judges do not necessarily obey the orders that they receive from the remainder
of the governmental system. On the whole, this is probably desirable. No citizen could
possibly have a full knowledge of all the laws, written by legislatures, that literally
apply to him. Under such circumstances, it seems advantageous that the judges do
not, in fact, enforce the laws.
Political pressure on the judiciary would not diminish by shifting from common law to a
civil code system. Tullock (1997: 416) laments the judicial deference of justices on the
Supreme Court following FDR’s court-packing scheme in 1937. The result of immense political pressure was the Court’s studied deference of the Court to the decisions of Congress
afterwards. A civil code system would institutionalize this deference insofar as the court
becomes subordinate to the legislature.
Political pressure would also arise from the process of selecting judges in a civil code
system. Tullock offers no insight into this process. If the legislature appoints judges to carry
out a civil code system, interest groups will still influence the selection process. The election of judges would still suffer from the standard problems of rationally ignorant voters,
lobbying and special interest campaign contributions.
For the civil code system to produce better outcomes than achieved under the common
law, judges must be motivated to seek the truth and efficiency. Tullock offers no explanation as to why judges’ behavior will suddenly be more noble or efficiency minded under a
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civil code system. It seems there could be no independence of the judiciary, as commonly
understood, in a civil code system.
When the power to make law rests with the legislature, and the judge is subordinate to
the legislature, nothing stands in the path of tyranny. The Founders intended the judiciary
to serve as a check on the power of the legislature. The jury serves as secondary check on
the legislature and on the judiciary. If the law is understood to be whatever the legislature
deems to be appropriate and the judiciary is tasked with interpreting the law and the facts of
a case, there can be no protection for individual rights.
As detailed above, the Founders devised the judicial branch to operate as a check on legislative power. They intended that the independence provided to judges in the Constitution
would serve to protect the rights of the people. In practice, the remaining ambiguity in the
Constitution with respect to the role of the judiciary may serve to increase political activism.
Judges and justices have interpreted the oath to uphold the Constitution in a variety of ways.
Within the current common law system, when reviewing legislation, judges and justices
have a range of options. At one end of the spectrum is unconstrained activism whereby
judges make whatever rules they wish. At the other extreme, absolute judicial restraint leads
judges routinely to defer to the legislature. Some commentators favor active monitoring of
the legislature to strike down legislation that violates the Constitution. Others argue that
the courts should defer to the legislators as the elected representatives of the people. Judicial pragmatists recommend examining each set of circumstances and making a thoughtful
choice with the goal of achieving principled objectives. Unconstrained activist judges are
guided by personal political agendas. Absolute restraint fails to protect individual rights because of the rational ignorance of voters, ideological pressures within the legislature, vote
trading and logrolling by minority factions. The middle ground of the pragmatists makes the
courts and the legislature vulnerable to pressure for achieving objectives that the other could
not achieve.
Tullock argues for a shift to a civil code system. Yet, with the judge always deferring
to the legislature because of pressures inherent in that system, individual rights would not
be protected. The only remaining check on legislative power would be the veto power of
the president. This is insufficient as the legislature can override a veto with a two-thirds
vote in the House. In times when one party controls both houses of Congress as well as the
executive, there would be no check on the legislature.
4 Conclusion
Tullock charges that the Founders erred when setting up the Supreme Court to act as final
arbiter: “The result was the Supreme Court, which gradually has abandoned its role as constitutional guardian in favor of a more glamorous, if dangerous, role as lawmaker” (Tullock
1997: 445). Here we see a hint that Tullock’s true disdain is not for the common law system
itself or even the jury at the heart of the adversarial process, but for activist judges who have
perverted that system.
Tullock clearly is frustrated by the procedures of the common law system and his work
forces scholars in the field to re-think their fundamental assumptions, but his arguments
against the common law and the adversarial process do not require a complete overhaul
of the American legal system as designed by the Founders. A few changes would have
a substantial and dramatic impact on the operation of the American legal system without
tossing the jury out of the courtroom and leaving the judge to rule as an arm of the legislature.
The goal is to retain the protections against tyranny incorporated into the Constitution by
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the Founders while closing the loopholes exploited by rent-seeking trial lawyers and activist
judges with ideological leanings unfavorable to liberty.
Perhaps the best first move is to clean up the jury system. Currently, as Tullock notes,
juries are composed of individuals hand-picked by lawyers on either side. Lawyers seek out
those who fit a psychological profile expected to be sympathetic to their client. Individuals
of talent or intelligence avoid service altogether or are tossed out by lawyers who would
prefer a jury that is prone to emotional reaction to courtroom rhetoric. Replacing this jury
selection circus with a process by which jurors are chosen truly randomly would be more
likely to represent society. The ability of lawyers to toss out potential jurors “for cause” must
be restricted.
If Americans truly place great faith in the ability of a jury to find the truth, the jury should
be capable of discounting, inter alia, hearsay testimony and circumstantial evidence. Untie
the hands of the jury by eliminating the rules of evidence that block jurors from viewing
relevant evidence. If the average American cannot be trusted to interpret the law, confine the
jury to determining matters of fact and permit the judge to interpret law.
In answer to Tullock’s concern about the level of litigation in America, it is necessary to
adopt the rules that have worked elsewhere. To eliminate the many frivolous lawsuits and
the associated costs, follow the example of England and Wales. Prohibit contingency fees
and adopt the rule that the loser pays the court costs and legal fees of both parties. Lawyers
will be more inclined to chase only the ambulances whose occupants are truly injured and
have a substantial likelihood of winning in court.
On the issue of common law versus civil code, two of the distinguishing features of the
classical period that did not transfer to the American system are: (1) the system of competing
courts, and, (2) the requirement that a decision survive repeated independent verifications
before becoming precedent. Today, lawyers shop around for sympathetic judges and expend
great effort on jury selection to ensure the desired outcome. One decision can change “the
law” in an instant, having a dramatic ripple effect throughout the nation, as in Kelo. The
move toward arbitration in matters of contract is one attempt to bring back competing courts
in private matters. Arbitration, as Tullock notes, operates without a jury in a manner quite
similar to the inquisitorial process. The challenge is to extend that type of system to other
areas of law.
Of course, these suggestions leave open many questions that would require substantial
additional research into the implementation and implications of such dramatic changes to the
American legal system, not least because the two arguments Tullock (1997) makes against
the common law may not be as distinct and separable as he implies, given his work in
the analysis of bureaucracy and rent seeking. Luppi and Parisi (2012) use Tullock’s own
model of rent seeking to analyze alternative procedural rules and find support for his case
against the common law and criticism of the American system by demonstrating that his
two separate arguments are intertwined. Procedure influences substantive law, namely, the
selection of cases litigated differs under the American rule as compared to the English loserpays rule, resulting in an evolutionary bias in the production of legal rules. Certainly too,
rules of evidence and other procedures influencing the use and function of juries alter the
selection of cases and effort of opposing counsel in the American system. Many scholars
have analyzed Tullock’s separate arguments against the common law;11 perhaps, what is
needed is a look at the bigger picture. Thus, Tullock’s case against the common law may
contain seeds of a more complex debate that, as is common for this man’s legacy of original
contributions, was ahead of its time.
11 For a recent example, see Zywicki (2008).
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Acknowledgements I would like to thank Charles K. Rowley and William F. Shughart II, for helpful
comments and suggestions. Responsibility for remaining errors is mine.
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Author's personal copy
Public Choice
Cases cited
Kelo v. City of New London, Connecticut (2005). 125 S. Ct. 2655.
Marbury v. Madison (1803). 5 U.S. (1 Cranch) 137.
Penn Central Transportation Company et al. v. City of New York et al. (1978). 438 U.S. 104, 98 S. Ct. 2646.