The evolution of common law: revisiting Posner, Hayek & the economic analysis of Law

Ojo, Marianne (2014): The evolution of common law: revisiting Posner, Hayek & the economic analysis of Law.

Abstract

This paper is aimed at highlighting how common law has evolved over the centuries, namely through the flexibility accorded to judicial precedents, as well as through the evolutionary nature evidenced in the processes and rules applied in statutory interpretation. In addition to illustrating how informational asymmetries can be mitigated through decentralisation, the paper also illustrates how a particular case, Pepper v Hart has revolutionised the scope and permissibility of aids to statutory interpretation. Whilst the decision in the case has been criticised as having facilitated a transfer of powers from the executive and legislature, to the judiciary, it is also evident that any form of aid to statutory interpretation - which would greatly assist judges in arriving at reasonable outcomes - in terms of legitimate expectations and efficient allocation of economic resources, should be permitted in judicial proceedings.

Whilst financial markets and changes in the environment impact legislators, and whilst it is widely accepted that legislation constitutes the supreme form of law, the necessity for judges to introduce a certain level of flexibility will also contribute towards ensuring that legitimate expectations of involved parties are achieved - particularly where the construction of the words within a statute gives rise to considerable ambiguity.

• Item Type: MPRA Paper
• Language: English
• Keywords: legitimate expectations; certainty; flexibility; judicial precedents; statutory interpretation; allocative efficiency, Pepper v Hart; Posner; Hayek; common law
• Subjects: E - Macroeconomics and Monetary Economics > E3 - Prices, Business Fluctuations, and Cycles; G - Financial Economics > G1 - General Financial Markets; G - Financial Economics > G1 - General Financial Markets > G14 - Information and Market Efficiency ; Event Studies ; Insider Trading; G - Financial Economics > G1 - General Financial Markets > G18 - Government Policy and Regulation; K - Law and Economics > K2 - Regulation and Business Law

References

Ayres I and Braithwaite J, Responsive Regulation: Transcending the Deregulation Debate Oxford University Press 1992

Boettke P, “Information and Knowledge: Austrian Economics in Search of its Uniqueness” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1537989

Brudney J, “The Story of Pepper v Hart: Examining Legislative History Across the Pond” Public Law and Legal Theory Working Paper Series No 124 May 6 2010 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1601291

Carlton D and Fischel D , “The Regulation of Insider Trading” Stanford Law Review Volume 35 No 5 (May 1983) pp 857-895

Grabosky P and Braithwaite J Of Manners Gentle: Enforcement Strategies of Australian Business Regulatory Agencies, (1986) Oxford University Press, Melbourne

Hayek, FA “The Use of Knowledge in Society” The American Economic Review, Vol. 35, No. 4.(Sep., 1945), pp. 519-530 http://www.jstor.org/discover/10.2307/1809376?uid=3739920&uid=2&uid=4&uid=3739256&sid=21104299293711

Jha K, “Examining the Current Importance of Pepper v Hart” November 2012 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2149694

Ojo M, “Co-operative and Competitive Enforced Self Regulation: The Role of Governments, Private Actors and Banks in Corporate Responsibility http://mpra.ub.uni-muenchen.de/27850/1/MPRA_paper_27850.pdf

Pepper v Hart [1992] 3 WLR 1032, [1993] 1 All ER 42, HL (E)

Posner R “Theories of Economic Regulation” (1974) 5 BellJournal of Economics and Management Science at pages 343 and 344.

SEC v Texas Gulf Sulphur Co, 401 F.2d 833 (2d Cir 1968) (en banc), cert denied, 404 U.S 1005 (1971).

Styles, SC “The Rule of Parliament: Statutory Interpretation After Pepper v Hart” Oxford Journal of Legal Studies Vol 14 No 1 ( Spring 1994) pp 151-158 Oxford University Press

Zywicki TJ and Sanders, AB “Posner, Hayek & the Economic Analysis of Law” Iowa Law Review Volume 93 No 2,pp 559-603 February 2008, George Mason University Law and Economics Research Paper Series