JURISDICTIONAL COMPETITION AND THE EVOLUTION OF THE COMMON LAW: A H YPOTHESIS * DANIEL KLERMAN Historians explain the development of the common law in many ways. Some emphasize the internal logic of legal concepts,1 while others focus on external factors , such as political, social, or economic conditions.2 A few point to the influence of philosophy3 or other legal systems. 4 For many, the institutional structure of the legal system is the central, whether it be the role of juries,5 the changing dynamics of pleading and post-trial motions, or innovation by lawyers in the service of their clients. 6 Among the institutional factors which influenced legal development, many historians point to competition among courts as an agent of legal change. 7 While references to jurisdictional competition are common in the * Daniel Klerman, Professo r of Law and History, USC Law School, University Park MC-0071, 699 Exposition Blvd, Los Angeles, CA 90089-0071, USA
[email protected]. Phone: 213 740-7973. Fax: 213 740-5502. The author thanks Lisa Bernstein, Hamilton Bryson, David Crook, Barry Cushman, John de Figueiredo, Richard Epstein, Thomas Gallanis, Joshua Getzler, Gillian Hadfield, Richard Helmholz, Ehud Kamar, Peter Karsten, Timur Kuran, Gregory LaBlanc, Doug Lichtman, James Lindgren, Edward McCaffery, James Oldham, Richard Posner, Jonathan Rose, Eric Talley, Steven Yeazell, Todd Zywicki, and participants in the University of Virginia Law School Faculty Workshop and Australia and New Zealand Legal History Society 2002 annual meeting for comments and suggestions. Unfortunately, many of their ideas and criticisms are not yet reflected in this essay. The author hopes that, as research progresses, their suggestions and concerns will be addressed.