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 Anglo-Saxon common law system.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
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.
Shughart (2004) provides a thorough analysis of the cases and events occurring during this time period.
In 2006, the Association of Trial Lawyers of America changed its name to the American Association for Justice (Rubin and Shepherd 2013).
We, Therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing 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).
In the Fort Hill Address of 1831, John Calhoun openly and unambiguously identified himself with the nullification 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.
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).
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).
“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).
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).
For a recent example, see Zywicki (2008).
References
Buchanan, J. M. (1987). The qualities of a natural economist. In C. K. Rowley (Ed.), Democracy and public choice: essays in honor of Gordon Tullock (pp. 9–19). Oxford: Basil Blackwell.
Calabresi, G. (1970). The cost of accidents. New Haven: Yale University Press.
Coase, R. H. (1960). The problem of social cost. Journal of Law and Economics, 3, 1–44.
Ehrlich, I., & Posner, R. A. (1974). An economic analysis of legal rule-making. Journal of Legal Studies, 3, 257–286.
Fleck, R. K., & Hanssen, F. A. (2013). Judges: why do they matter? In M. Reksulak, L. Razzolini, & W. F. Shughart II (Eds.), The Elgar companion to public choice (2nd ed., pp. 233–248). Cheltenham: Edward Elgar.
Goetz, C. J. (1987). Public choice and the law: the paradox of Tullock. In C. K. Rowley (Ed.), Democracy and public choice (pp. 171–180). Oxford: Basil Blackwell.
Kurland, P. B. & Lerner, R. (Eds.) (1987). The Founders’ constitution (Vols. 1–5). Indianapolis: Liberty Fund.
Lehman, G. D. (1997). We the jury: the impact of jurors on our basic freedoms. Amherst: Prometheus Books.
Luppi, B., & Parisi, F. (2012). Litigation and legal evolution: does procedure matter? Public Choice, 152, 181–201.
Parisi, F. (2004). The efficiency of the common law hypothesis. In C. K. Rowley (Ed.), The encyclopedia of public choice (Vol. II, pp. 195–198). Dordrecht: Kluwer.
Posner, R. A. (1979). Utilitarianism, economics and legal theory. Journal of Legal Studies, 8, 103–140.
Posner, R. A. (1986). Economic analysis of the law (3rd ed.). Boston: Little, Brown & Co.
Posner, R. A. (1994). What do judges and justices maximize? (The same thing everybody else does). Supreme Court Economic Review, 3, 1–41.
Posner, R. A. (1999). An economic approach to the law of evidence (Working Paper No. 66). Chicago: University of Chicago, The Law School, John M. Olin Law and Economics.
Priest, G. L. (1977). The common law process and the selection of efficient rules. Journal of Legal Studies, 6, 65–82.
Rose-Ackerman, S. (1987). Tullock and the inefficiency of the common law. In C. K. Rowley (Ed.), Democracy and public choice (pp. 181–185). Oxford: Basil Blackwell.
Rowley, C. K. (2005). Introduction. In The selected works of Gordon Tullock (Vol. 6, pp. ix–xvii). Indianapolis: Liberty Fund.
Rowley, C. K. (2012). The intellectual legacy of Gordon Tullock. Public Choice, 152, 29–46.
Rowley, C. K., & Houser, D. (2012). The life and times of Gordon Tullock. Public Choice, 152, 3–27.
Rubin, P. H. (1977). Why is the common law efficient? Journal of Legal Studies, 6, 51–63.
Rubin, P. H., & Shepherd, J. A. (2013). Public choice and the law. In M. Reksulak, L. Razzolini, & W. F. Shughart II (Eds.), The Elgar companion to public choice (2nd ed., pp. 345–361). Cheltenham: Edward Elgar.
Shughart, W. F. II (2004). Bending before the storm: the US Supreme Court in economic crisis 1934–1937. Independent Review, 9(1), 55–83.
Shughart, W. F. II, & Tollison, R. D. (1998). Interest groups and the courts. George Mason Law Review, 6(4), 953–969.
The Federalist (1788/1952). In R. M. Hutchins (Ed.), Great books of the Western world (Vol. 43). Chicago: Encyclopaedia Britannica.
Tullock, G. (1965). The politics of bureaucracy. In C. K. Rowley (Ed.), The selected works of Gordon Tullock (Vol. 6, pp. 2–238). Indianapolis: Liberty Fund.
Tullock, G. (1971/1987). The logic of the law. Fairfax: George Mason University Press.
Tullock, G. (1980). Trials on trial: the pure theory of legal procedure. New York: Columbia University Press.
Tullock, G. (1988). Defending the Napoleonic code over the common law. Research in Law and Policy Studies, 9, 3–27. Reprinted in C. K. Rowley (Ed.), The selected works of Gordon Tullock (Vol. 9: pp. 339–363). Indianapolis: Liberty Fund.
Tullock, G. (1992). Economic hierarchies, organization, and the structure of production. In C. K. Rowley (Ed.), The selected works of Gordon Tullock (Vol. 6, pp. 239–422). Indianapolis: Liberty Fund.
Tullock, G. (1997). The case against the common law. In C. K. Rowley (Ed.), The selected works of Gordon Tullock (Vol. 9, pp. 397–455). Indianapolis: Liberty Fund.
Tullock, G. (2000). People are people. In C. K. Rowley (Ed.), The selected works of Gordon Tullock (Vol. 4, pp. 32–45). Indianapolis: Liberty Fund.
Zywicki, T. J. (2008). Spontaneous order and the common law: Gordon Tullock’s critique. Public Choice, 135, 35–53.
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.
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.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Biser, J.J. Law-and-economics: why Gordon Tullock prefers Napoleon Bonaparte over the Duke of Wellington; and why he may end up on St. Helena. Public Choice 158, 261–279 (2014). https://doi.org/10.1007/s11127-013-0083-9
Received:
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11127-013-0083-9