July, 2007

Gordon Tullock's Critique of Common Law

  • Todd Zywicki

    George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
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This working article is part of a symposium on the work of Gordon Tullock held in connection with the presentation to Tullock of the "Lifetime Achievement Award" of the Fund for the Study of Spontaneous Orders at the Atlas Research Foundation for his contributions to the study of spontaneous orders and methodological individualism. This contribution to the symposium studies Tullock's critique of the common law. Tullock critiques two specific aspects of the common law system: the adversary system of dispute resolution and the common law process of rulemaking, contrasting them with the inquisitorial system and the civil law systems respectively. Tullock's general critique is straightforward: litigation under the common law system is plagued by the same rent-seeking and rentdissipation dynamics that Tullock famously ascribed to the process of legislative rent-seeking. This article reviews Tullock's theoretical critique and empirical studies on both issues. The article concludes that Tullock’s critique of the adversary system appears to be stronger on both theoretical and empirical grounds than his critique of the common law system of rulemaking.