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Unpublished Paper
Judges, Lawyers, and a Predictive Theory of Legal Complexity
ExpressO (2008)
  • Benjamin H Barton
Abstract

This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic; each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the common interests, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious. The Article uses the law of standing as a case study.

Keywords
  • Complexity,
  • public choice theory,
  • judicial behavior,
  • institutional analysis,
  • lawyers,
  • judges
Disciplines
Publication Date
August 5, 2008
Citation Information
Benjamin H Barton. "Judges, Lawyers, and a Predictive Theory of Legal Complexity" ExpressO (2008)
Available at: http://works.bepress.com/benjamin_barton/2/