Rivalry and superior dispatch: an analysis of competing courts in medieval and early modern England

Abstract

Efficiency of common law, Legal history, Monopolization of law, K40, N43, P48,

Common law and economic efficiency

“…Zywicki claims that this judicial competition helped drive the early common law toward efficiency as courts competed to provide the law and procedures most appropriate to parties' needs (see also Rowley 1989). Choice of court was either implicitly or explicitly made ex ante (at the outset of the contract), which would be expected to lead parties to prefer efficient rules that minimized transaction costs (Stringham and Zywicki 2010). Moreover, many of these competing courts (most notably the law merchant and ecclesiastical courts) provided law that was rooted in principles of reciprocity derived from merchant custom or religious belief.…”

“…Klerman claims that this reform led to a gradual elimination of the pro-plaintiff bias in the common law courts and to the adoption of a variety of pro-defendant rules instead. Although highly illuminating with respect to those areas under his scope, Klerman's analysis is limited just to cases in the Royal courts and ignores others, such as the law merchant, ecclesiastical, and Staple Courts (Stringham and Zywicki 2010). He also notes that the pro-plaintiff bias of the common law court was constrained to some extent by the Chancery, to which disputes could be removed, and which frequently served to restrain some of the rule-bound decision-making of the Royal courts that produced problematic results.…”

“…He also notes that the pro-plaintiff bias of the common law court was constrained to some extent by the Chancery, to which disputes could be removed, and which frequently served to restrain some of the rule-bound decision-making of the Royal courts that produced problematic results. Other scholars have raised doubts about the importance and autonomy of the law merchant courts, but as noted by Benson (2010) and Stringham and Zywicki (2010), inferences drawn from these findings are highly overstated.…”

“…On the other hand, where court choice is unilateral, such as by allowing a plaintiff to file a case without the defendant's implicit or explicit agreement, this can give rise to malign forum shopping, as plaintiffs can involuntarily drag defendants into jurisdictions favorable to the plaintiff. In this situation, judges competing for cases will do so by aggressively promoting pro-plaintiff law in order to attract cases to their jurisdiction (Zywicki 2006;DiIanni 2010;Stringham and Zywicki 2010). Fon and Parisi (2003) provide a similar insight: since plaintiffs decide in which court to file, those with marginal cases will file cases with judges who favor rules that expand liability.…”

A path already travelled in domestic orders? From fragmentation to constitutionalisation in the global legal order

“…To shed new light on the expanding role of courts within the global legal order, we draw comparisons with the development of courts within a constitutionalising domestic order. For this purpose, the constitutional history, from the Middle Ages to the nineteenth century, of the polity which in 1707 became the UK provides a suitable frame of reference, being marked by ‘multiple … courts with overlapping jurisdictions compet[ing]over many of the issues that now comprise the common law’ (Stringham and Zywicki, 2011, p. 498). This history showcases courts' efforts within a fragmented legal order to preserve their jurisdictions against encroachments by rival tribunals.…”