Type: Process Essays
Sample donated: Byron Christensen
Last updated: December 23, 2019
GordonTullock, an Economist and Professorof Law and Economics at the George Mason University School of Law, isthe author of several books in the Political Science genre.
(Rowley) This bookreview will analyze one of his most interesting works, Law and Economics. While most scholars favor the common law system,Tullock argues that it is inefficient, and modifications should be made tochange the U.S. to the civil law system used in Europe.
In addition, Tullockfavors ridding the U.S. ofadversarial proceedings in exchange for the inquisitorial process. Heseeks to understand the logical reasoning behind the methods in which wepractice law and whether these methods are the most efficient and cost effective. Tullock hopes that by examining thetheoretical relationship between law and economics, we can gain not only newperspectives on our legal methods, but also innovative approaches tocontemporary issues within our courts and laws. While the common lawsystem was efficient at one point, he argues it has evolved into a stage on which many actors play divergentroles.
(Tullock)SUMMARYThemain body of Law and Economics isdivided into three sections: 1) The Logic of the Law 2) The Economics of LegalProceedings, and 3) The Case against the Common Law. Thisbook review will summarize the last section of the book, “The Case against theCommon Law”, and will incorporate some of Tullock’s related theories, proposedchanges, and logic used in prior chapters to reach his conclusion. The three primarydifferences between the common law system and the civil law system that will beoutlined are the inquisitorial versus adversarial method of procedure, theabsence versus presence of the jury, and laws that require full disclosure ofevidence versus laws that limit. Commonlaw concepts originally came from England and have been changed and adapted tothe U.S.
system. Tullock argues that the public institutions in the U.S.
werecreated by the monarchy who were interested in centralizing and consolidatingtheir power in all areas of law, and are not compatible in a representativedemocracy. Tullock finds the European civil law system is superior for itsaccuracy and cost efficiency. Incertain cases, the U.S.
uses the inquisitorial system for misdemeanors such asminor traffic violations. Thefirst primary difference between the common law system and the civil law systemis the inquisitorial versus adversarial method of procedure. In an inquisitorial system, part of thecivil law system used in Europe, the court is actively involved in theinvestigation of the facts of a case. In an adversarial system, part of the commonlaw system used in the U.
S., lawyers investigate the facts of the case and thecourt acts as a referee between the defense and the prosecution. Because theinquisitorial system replaces lawyers with a judge, or group of judges, ifthe U.S. were to adopt the inquisitorial system, it would largely reduce thedemand for lawyers. Civil law countries resolve their legal business with10-20% of the practicing lawyers in the United States.
Inaddition to decreasing the demand for lawyers, Tullock argues that theinquisitorial system establishes a more objective court. Tullock asserts the verdictsmade in the adversarial system are not accurate because lawyers tend to pollutethe truth, confuse jurymen, and drag cases out. Because lawyers are moreconcerned with winning a case rather than being right, the investigation for acase stops once there are enough facts to win the case. Tullock argues that ifa judge was awarded the responsibility of investigation, his motive would be toseek the truth. Furthermore,in addition to decreasing the demand for lawyers and creating a more objectivecourt, Tullock argues the inquisitorial system would decrease litigation costsand decrease the volume of litigation.
The U.S. has some of the highestlitigation costs in the world; however, Tullock found this does not achievegreater accuracy of verdicts.
In the inquisitorial system, the loser bears theburden of the litigation costs on both sides and fee arrangements are mostlyprohibited. This reduces the amount of litigation. If this method was adoptedby the U.S., it would cause disputing parties to think twice before taking advantageof court services.
Because U.S. court services are provided at little to nocost to the public, U.S.
courts are subject to non-price rationing and arevulnerable to the tragedy of the commons. The tragedy of the commons is aneconomic theory when individuals act independently according to their owninterests in a shared resource system, contrary to the common good of allusers, that resource will be depleted and spoiled through their collective action.Tullock suggests establishing market-clearing prices for the court system inthe U.
S. to help avoid the tragedy of the commons1 and reduce thevolume of litigation. Thesecond primary difference between the common law system and the civil lawsystem is the absence versus presence of the jury.
The common law system is oneof the only remaining jury-based systems. Tullock admits the jury system hasseveral advantages over the judge-based system because it is more difficult tobribe, decisions made tend to be more ethical, rulings tend to be in favor ofthe defendant, and the jury can sympathize with the defendant more than a judgecould. However,Tullock feels a judge-based system is superior because judges have greaterintelligence, more knowledge of the law, and will pay closer attention to theaccuracy of their decisions since their promotions and raises depend onperformance. Tullock persists, saying not only would judge-made verdicts bemore accurate than jury-made verdicts due to their increased knowledge, but judgeswould be provided additional access to clear information and/or aides. Tullockaddresses common concerns about a judge-based system being more biased bysaying even if a judge is biased, this does not necessarily mean the biasedverdict is not accurate.
Thelast difference between the common Law system and civil law system is laws thatrequire full disclosure of evidence versus laws that limit. The common lawsystem limits the disclosure of evidence more than the civil law system. Forexample, U.S. courts discount hearsay evidence because they feel jurymen willbe easily misled. In Europe, hearsay evidence is allowed, and the judge willdetermine its significance. Tullock asserts it is irrational for the U.
S. tolimit hearsay evidence, because American courts place much more difficult formsof evidence in the jury’s discretion, and surely, they can discern itsimportance. Tullock claims that the European system is biased in favor of theaccused because hearsay evidence does “not have much to do with the accuracy orinaccuracy of a trial.” (Tullock 361) He finds this is yet another argument forthe inquisitorial and judge-based system. A judge would be able to discern theimportance of evidence and there would be no concern for the “easily misled”jury.DISCUSSIONPrior to the last portion of thebook, “The Case Against the Common Law”, summarized above, Tullock dedicated alarge portion of his book to expressing that the structure of the court systemin the U.S.
renders the legal system vulnerable to public choice pressures. The government wields power overthe courts because federal judges are appointed after nomination by thePresident and confirmation by the Senate, the integrity of the judicial systemmay be threatened if judges upheld the constitution against the President orCongress, and the money allocated to their office is dependent on Congress. AlthoughJames Madison and the other Framers of the Constitution tried to make the courtone of the most objective institutions by adopting the common law system, the U.S.court system has fallen to not only political pressures from other branches,but has engaged in interest group dealings.The court, in addition to facingpressure from the government, faces pressure from special interest groups. Tullockdeveloped the theory of “rent seeking”.
Rent seeking is when an interest group lobbies topolitical actors in an effort to influence and later benefit from legislation. Inchapter 7, Tullock expressed great concern for rent-seeking behavior,explaining that when interest groups petition the government for specialtreatment, the economy loses. Two of the most popular rent-seekersof the U.S.
courts is The Association of Trial Lawyers of America and theAmerican Bar Association. These organizations pressure judges into creatinginefficient laws to create a demand for lawyers and legal services. The policeforce also pressures judges into creating laws that increase convictions. Forexample, many U.S. courts have produced laws where if a defendant pleadsguilty, he will receive a lighter sentence than if he were to plead not guilty.Tullock indicates that the court system, or the U.S.
court system inparticular, is all too powerful and hurting citizens by falling to thesepressures. This begs the question: If Tullock is correct in saying there iscorruption in the courts because judges are easily pressured by both the governmentand interest groups, then why is he advocating for a system that would grantmore power to this institution? Surely, political pressures and corruption arenot confined to a common law system. The inquisitorial system and thejudge- based system that Tullock is advocating for give even more power to thecourts.
If a person, under the inquisitorial system, were to find himself inthe position where a policeman provoked and violated his rights, he may havelittle opportunity to pursue justice. In this case, the dispute could be adjudicated by the state, where the investigator (thejudge), the decision-maker (the judge), the antagonist (the police), and theonly witness (the police), all represent the same party. If these state-ownedand operated entities were to abuse their power, the state would therefore beindistinguishable from a criminal cartel. Since the judge has a sort of monopolyin the fact finding and decision-making of a case in the inquisitorial system,if a judge exhumes bias, the victimized party will be unable to counter hisclaims or the verdict.
The adversary system allows biased parties to countereach other’s accusations, for the judge or jury to distinguish the truth. Inaddition, it is difficult to determine or prove if a judge invested enoughresources necessary for an accurate ruling. The amount of money allocated tocase investigations, funded by the taxpayer, will be limited, and most likelywill not be given the ideal amount of care, attention, or resources. In the adversary system, the partieswill choose the amount they wish to be invested in the case. However, thiscould result in an imbalance of funding between the parties and those withdeeper pockets would have an advantage.
While a judge may be more intelligentthan the average juryman, juries may provide a more unbiased perspective sincethey are new and have not had the chance to develop prejudice from previouscourt experiences or outcomes. This, coupled with the fact that juries are moredifficult to bribe, may offset the concern of the lack of intelligence by thejury. The best solution is keeping the jury-based system. The framers of the Constitution feltthe jury was an integral part of the U.S. court system to protect individualsagainst tyranny and rent-seeking. The framers could not have envisioned theissues the court system is facing today. Tullock’s proposal of stripping thejury system altogether is harsh and unfeasible.
While the U.S. jury-based courtsystem has fallen to corruption and interest group dealings that have abridgedjustice, it is not the jury that has authorized corruption, it is the judge. Itwould be better to provide the jury with additional fact-based information, solawyers could not easily deceive, to assist them in making more informeddecisions. After all, Tullock suggested providing the judges with additionalinformation and even aides if the U.S. adopted the inquisitorial system.
Lastly, Tullock was concerned thatthe common law system laws of evidence are not biased in favor of the accusedlike the civil law laws of evidence are. This seems to be a contradiction sincehe does not favor a jury-based system, which tends to be in favor of theaccused, over a judge-based system because judges are more knowledgeable. Law and Economicsis an innovative work that provides readers with an unconventional view of U.S.procedures, courts, and laws. While Tullock’s arguments for an efficient and low-costcourt are appealing, presently there are corruption issues that would only growworse by changing the U.
S. to the civil law system. Stripping the common lawsystem altogether would not be a solution to the rent-seeking behavior that is turningAmerica resulting in the tragedy of the commons. It is not the common lawsystem that is causing the tragedy of the commons, but the corrupt individualswho work for the state that have found loopholes to abuse this power.
Rather, Isuggest that reforms should be made to strengthen the checks and balances inthe U.S., to close the loopholes that enable rent-seeking behavior, and to limitlitigation costs.