Humans interact, which gives rise to legal regulation, which gives rise in turn to theorizing about that legal regulation. The theorizing may be intended to, and perhaps does, influence the evolution of the legal regulation. This Article analyzes the susceptibility of legal regulation of differing types of human interaction to being organized or explained by top-down deductive theories of general applicability. We hypothesize that at least three variables determine in part the relevance of general theories to sets of legal phenomena: ambiguity (gaps in the law), unpredictability (computational intractability), and the comparative need for specialized and commonsense reasoning. We further hypothesize that as ambiguity, unpredictability, and the utility of common-sense reasoning go up, the amenability of a set of legal phenomena to general theoretical approaches decreases. We thus predict that the meaning of negligence will be resistant to theoretical approaches, both economic and corrective justice, and that antitrust law will be influenced by microeconomic approaches. We test these predictions in various ways and find support for both of them.
Ronald J. Allen & Ross M. Rosenberg,
Legal Phenomena, Knowledge, and Theory: A Cautionary Tale of Hedgehogs and Foxes,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol77/iss2/5