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Litigation

Boston University School of Law

Decisions biasing the legal standard

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Information, Litigation, And Common Law Evolution, Keith Hylton Jan 2006

Information, Litigation, And Common Law Evolution, Keith Hylton

Faculty Scholarship

It is common in the legal academy to describe trends in judicial decisions leading to new common law rules as the result of conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This paper presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop ...