The Case Against the Common Law,
by Gordon Tullock (1997)
Central to the social functions and the foundational principles of the common law system is the concept of doctrinal stability as encapsulated in the institutional principle of stare decisis, or binding precedent. Under this principle, precedent binds subsequent similar cases when certain formal conditions are met. The doctrinal stability standard cannot survive significant deviation from the principle of stare decisis.
In this brilliantly argued and hard-hitting monograph, Gordon Tullock demonstrates how the retreat from stare decisis in the U.S. common law system is a predictable consequence of adverse institutional characteristics. He concludes that this withdrawal is now sufficiently extensive as to challenge the validity of the common law system itself. For what is now left - the surviving kernel of a once robust system of law - is a high-cost, subjective, unresponsive, non-replicable and essentially illegitimate legal system predicated more on the rule of men than on the rule of law.
Laissez Faire, (June 1999)
A comprehensive critical evaluation of the fields of law created largely by judges - which include criminal law, property, contracts, and torts - by one of the founders of Public Choice economics. Many in the law and economics movement view these areas as economically efficient, but Tullock argues that this is not so. Not only have the courts failed to honor their responsibilities with respect to cost-effective resolution of disputes, they now administer a subjective, unresponsive, and essentially illegitimate legal system predicated more on the rule of men than the rule of law.