Gordon several books in the Political Science genre.

Gordon
Tullock, an Economist and Professor
of Law and Economics at the George Mason University School of Law, is
the author of several books in the Political Science genre. (Rowley) This book
review 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 to
change the U.S. to the civil law system used in Europe. In addition, Tullock
favors ridding the U.S. of
adversarial proceedings in exchange for the inquisitorial process. He
seeks to understand the logical reasoning behind the methods in which we
practice law and whether these methods are the most efficient and cost effective. Tullock hopes that by examining the
theoretical relationship between law and economics, we can gain not only new
perspectives on our legal methods, but also innovative approaches to
contemporary issues within our courts and laws. While the common law
system was efficient at one point, he argues it has evolved into a stage on which many actors play divergent
roles. (Tullock)

SUMMARY

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The
main body of Law and Economics is
divided into three sections: 1) The Logic of the Law 2) The Economics of Legal
Proceedings, and 3) The Case against the Common Law. This
book review will summarize the last section of the book, “The Case against the
Common Law”, and will incorporate some of Tullock’s related theories, proposed
changes, and logic used in prior chapters to reach his conclusion. The three primary
differences between the common law system and the civil law system that will be
outlined are the inquisitorial versus adversarial method of procedure, the
absence versus presence of the jury, and laws that require full disclosure of
evidence versus laws that limit.

Common
law concepts originally came from England and have been changed and adapted to
the U.S. system. Tullock argues that the public institutions in the U.S. were
created by the monarchy who were interested in centralizing and consolidating
their power in all areas of law, and are not compatible in a representative
democracy. Tullock finds the European civil law system is superior for its
accuracy and cost efficiency. In
certain cases, the U.S. uses the inquisitorial system for misdemeanors such as
minor traffic violations.

The
first primary difference between the common law system and the civil law system
is the inquisitorial versus adversarial method of procedure. In an inquisitorial system, part of the
civil law system used in Europe, the court is actively involved in the
investigation of the facts of a case. In an adversarial system, part of the common
law system used in the U.S., lawyers investigate the facts of the case and the
court acts as a referee between the defense and the prosecution. Because the
inquisitorial system replaces lawyers with a judge, or group of judges, if
the U.S. were to adopt the inquisitorial system, it would largely reduce the
demand for lawyers. Civil law countries resolve their legal business with
10-20% of the practicing lawyers in the United States.

In
addition to decreasing the demand for lawyers, Tullock argues that the
inquisitorial system establishes a more objective court. Tullock asserts the verdicts
made in the adversarial system are not accurate because lawyers tend to pollute
the truth, confuse jurymen, and drag cases out. Because lawyers are more
concerned with winning a case rather than being right, the investigation for a
case stops once there are enough facts to win the case. Tullock argues that if
a judge was awarded the responsibility of investigation, his motive would be to
seek the truth.

Furthermore,
in addition to decreasing the demand for lawyers and creating a more objective
court, Tullock argues the inquisitorial system would decrease litigation costs
and decrease the volume of litigation. The U.S. has some of the highest
litigation costs in the world; however, Tullock found this does not achieve
greater accuracy of verdicts. In the inquisitorial system, the loser bears the
burden of the litigation costs on both sides and fee arrangements are mostly
prohibited. This reduces the amount of litigation. If this method was adopted
by the U.S., it would cause disputing parties to think twice before taking advantage
of court services. Because U.S. court services are provided at little to no
cost to the public, U.S. courts are subject to non-price rationing and are
vulnerable to the tragedy of the commons. The tragedy of the commons is an
economic theory when individuals act independently according to their own
interests in a shared resource system, contrary to the common good of all
users, that resource will be depleted and spoiled through their collective action.
Tullock suggests establishing market-clearing prices for the court system in
the U.S. to help avoid the tragedy of the commons1 and reduce the
volume of litigation.

The
second primary difference between the common law system and the civil law
system is the absence versus presence of the jury. The common law system is one
of the only remaining jury-based systems. Tullock admits the jury system has
several advantages over the judge-based system because it is more difficult to
bribe, decisions made tend to be more ethical, rulings tend to be in favor of
the defendant, and the jury can sympathize with the defendant more than a judge
could.

However,
Tullock feels a judge-based system is superior because judges have greater
intelligence, more knowledge of the law, and will pay closer attention to the
accuracy of their decisions since their promotions and raises depend on
performance. Tullock persists, saying not only would judge-made verdicts be
more accurate than jury-made verdicts due to their increased knowledge, but judges
would be provided additional access to clear information and/or aides. Tullock
addresses common concerns about a judge-based system being more biased by
saying even if a judge is biased, this does not necessarily mean the biased
verdict is not accurate.

            The
last difference between the common Law system and civil law system is laws that
require full disclosure of evidence versus laws that limit. The common law
system limits the disclosure of evidence more than the civil law system. For
example, U.S. courts discount hearsay evidence because they feel jurymen will
be easily misled. In Europe, hearsay evidence is allowed, and the judge will
determine its significance. Tullock asserts it is irrational for the U.S. to
limit hearsay evidence, because American courts place much more difficult forms
of evidence in the jury’s discretion, and surely, they can discern its
importance. Tullock claims that the European system is biased in favor of the
accused because hearsay evidence does “not have much to do with the accuracy or
inaccuracy of a trial.” (Tullock 361) He finds this is yet another argument for
the inquisitorial and judge-based system. A judge would be able to discern the
importance of evidence and there would be no concern for the “easily misled”
jury.

DISCUSSION

Prior to the last portion of the
book, “The Case Against the Common Law”, summarized above, Tullock dedicated a
large portion of his book to expressing that the structure of the court system
in the U.S. renders the legal system vulnerable to public choice pressures. The government wields power over
the courts because federal judges are appointed after nomination by the
President and confirmation by the Senate, the integrity of the judicial system
may be threatened if judges upheld the constitution against the President or
Congress, and the money allocated to their office is dependent on Congress. Although
James Madison and the other Framers of the Constitution tried to make the court
one 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 facing
pressure from the government, faces pressure from special interest groups. Tullock
developed the theory of “rent seeking”. Rent seeking is when an interest group lobbies to
political actors in an effort to influence and later benefit from legislation. In
chapter 7, Tullock expressed great concern for rent-seeking behavior,
explaining that when interest groups petition the government for special
treatment, the economy loses.

Two of the most popular rent-seekers
of the U.S. courts is The Association of Trial Lawyers of America and the
American Bar Association. These organizations pressure judges into creating
inefficient laws to create a demand for lawyers and legal services. The police
force also pressures judges into creating laws that increase convictions. For
example, many U.S. courts have produced laws where if a defendant pleads
guilty, 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 in
particular, is all too powerful and hurting citizens by falling to these
pressures. This begs the question: If Tullock is correct in saying there is
corruption in the courts because judges are easily pressured by both the government
and interest groups, then why is he advocating for a system that would grant
more power to this institution? Surely, political pressures and corruption are
not confined to a common law system.

The inquisitorial system and the
judge- based system that Tullock is advocating for give even more power to the
courts. If a person, under the inquisitorial system, were to find himself in
the position where a policeman provoked and violated his rights, he may have
little opportunity to pursue justice. In this case, the dispute could be adjudicated by the state, where the investigator (the
judge), the decision-maker (the judge), the antagonist (the police), and the
only witness (the police), all represent the same party. If these state-owned
and operated entities were to abuse their power, the state would therefore be
indistinguishable from a criminal cartel.

Since the judge has a sort of monopoly
in 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 his
claims or the verdict. The adversary system allows biased parties to counter
each other’s accusations, for the judge or jury to distinguish the truth. In
addition, it is difficult to determine or prove if a judge invested enough
resources necessary for an accurate ruling. The amount of money allocated to
case investigations, funded by the taxpayer, will be limited, and most likely
will not be given the ideal amount of care, attention, or resources.

In the adversary system, the parties
will choose the amount they wish to be invested in the case. However, this
could result in an imbalance of funding between the parties and those with
deeper pockets would have an advantage. While a judge may be more intelligent
than the average juryman, juries may provide a more unbiased perspective since
they are new and have not had the chance to develop prejudice from previous
court experiences or outcomes. This, coupled with the fact that juries are more
difficult to bribe, may offset the concern of the lack of intelligence by the
jury. The best solution is keeping the jury-based system.

The framers of the Constitution felt
the jury was an integral part of the U.S. court system to protect individuals
against tyranny and rent-seeking. The framers could not have envisioned the
issues the court system is facing today. Tullock’s proposal of stripping the
jury system altogether is harsh and unfeasible. While the U.S. jury-based court
system has fallen to corruption and interest group dealings that have abridged
justice, it is not the jury that has authorized corruption, it is the judge. It
would be better to provide the jury with additional fact-based information, so
lawyers could not easily deceive, to assist them in making more informed
decisions. After all, Tullock suggested providing the judges with additional
information and even aides if the U.S. adopted the inquisitorial system.

Lastly, Tullock was concerned that
the common law system laws of evidence are not biased in favor of the accused
like the civil law laws of evidence are. This seems to be a contradiction since
he does not favor a jury-based system, which tends to be in favor of the
accused, over a judge-based system because judges are more knowledgeable.

Law and Economics
is 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-cost
court are appealing, presently there are corruption issues that would only grow
worse by changing the U.S. to the civil law system. Stripping the common law
system altogether would not be a solution to the rent-seeking behavior that is turning
America resulting in the tragedy of the commons. It is not the common law
system that is causing the tragedy of the commons, but the corrupt individuals
who work for the state that have found loopholes to abuse this power. Rather, I
suggest that reforms should be made to strengthen the checks and balances in
the U.S., to close the loopholes that enable rent-seeking behavior, and to limit
litigation costs.

 

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