Law Commons^™

Against Flexibility, David A. Super

Faculty Scholarship

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions. Both public and private law should be understood as a productive activity con¬verting information, norms, and decisional and enforcement capacity into out¬puts of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overes¬ti¬mate the value of information that …