Benjamin H. Barton

Judges, Lawyers, and a Predictive Theory of Legal Complexity

This Article uses public choice theory and the new institutionalism to discuss the incentives, proclivities, and shared backgrounds of lawyers and judges. In America every law-making judge has a single unifying characteristic, each is a former lawyer. This shared background has powerful and unexplored effects on the shape and structure of American law. This Article argues that the shared characteristics, thought-processes, training, and incentives of Judges and lawyers lead inexorably to greater complexity in judge-made law. These same factors lead to the following prediction: judge-created law will be most complex in areas where a) elite lawyers regularly practice; b) judges may have a personal preference in the case that can be written-around by way of legal complexity; and c) the subject area interests the judge, or is generally considered prestigious. The Article uses the law of standing as a case study.

The Lawyer-Judge Hypothesis

Here is the lawyer-judge hypothesis in a nutshell: if there is a clear advantage or disadvantage to the legal profession in any given question of law, judges will choose the route that benefits the profession as a whole.1 In support of this hypothesis I offer examples drawn from multiple, distinct areas of the law. In so doing I hope to establish the accuracy of the theory and its far-reaching consequences. As a bonus, I also offer a single explanation for a series of puzzling legal anomalies.