NCJ Number
59832
Journal
Journal of Legal Studies Volume: 8 Issue: 2 Dated: (MARCH 1979) Pages: 285-294
Date Published
1979
Length
9 pages
Annotation
AN ECONOMIST SUMMARIZES AND COMMENTS CRITICALLY ON A MATHEMATICAL MODEL (LANDES AND POSNER, 1979) WHICH EXAMINED THE POSSIBILITY THAT JUDICIAL SERVICES ARE TREATED AS A PRIVATE ECONOMIC GOOD.
Abstract
THE MODEL (NCJ 59831) CONCLUDED THAT PRIVATE PROVISION OF THE RULE FORMULATION FUNCTION IS UNWORKABLE IS DISPUTED ON THE GROUNDS THAT CONFLICTING INCENTIVES, THE BASIS FOR THAT CONCLUSION, ARE ALSO A PROBLEM WITH PRESENT ECONOMIC INSTITUTIONS AND ARE NOT UNIQUE TO RULE FORMULATION. IN CONTRAST, THE AUTHOR BASICALLY, CONCURS WITH THE PAPER'S CONCLUSIONS ABOUT DISPUTE RESOLUTION. HOWEVER, SEVERAL CRITICISMS ARE MADE: (1) PRECEDENTS MAY BE USED IN ARBITRATION; (2) THE PROCESS OF SELECTION OF AN ARBITRATOR IS MORE COMPLEX THAN THE PAPER INDICATES; (3) THE ARBITRATOR SUPPLY HAS SOME BARRIERS TO ENTRY; (4) EVEN IN INVOLUNTARY RELATIONSHIPS BETWEEN DISPUTANTS, MANY CASES ARE SETTLED OUT OF COURT; AND (5) CONTRACTS MIGHT BE INVENTED TO AVOID THE LOGICAL DIFFICULTIES INVOLVED IN DISCUSSION OF A PRIVATE ADJUDICATION SYSTEM. THE PAPER'S MODEL OF THE DECISION TO LITIGATE HAS ASSUMPTIONS THAT DIVERGE FROM REALITY FOR THE SAKE OF SIMPLIFYING THE MODEL, BUT WHICH ARE VALID BECAUSE A MORE COMPLEX MODEL WOULD REACH SIMILAR CONCLUSIONS. IN ADDITION, THE PAPER'S DEFINITION OF PRECEDENT'S ROLE MAY NOT BE APPROPRIATE IN ALL CASES. DESPITE THESE MINOR CRITICISMS, THE AUTHOR CONCLUDES THAT THE PAPER REPRESENTS AN ADVANCE IN THE THEORETICAL LITERATURE. (CFW)