Abstract

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.