Harvard Law Review
In the past decade, commentators applying both economic and historical methods to the study of the classical common law have explicitly or implicitly made sweeping claims for the system's ability to allocate or redistribute substantial shares of wealth. In this Article, Professor Epstein challenges the assumption that the fundamental doctrines of the common law can have a decisive effect on the flow of resources in society. He calls attention to the constraints placed upon the system by the generality of its rules, the prospectively indeterminate alignment of economically interested parties, the expenses of adjudication, and the divergent social beliefs of the judiciary. He concludes that, while certain narrowly focused common law rules may work major economic effects, most interest groups would generally direct their attention to the legislative and administrative arenas, in which far greater gains and losses are to be expected.
Richard A. Epstein, "The Social Consequences of Common Law Rules," 95 Harvard Law Review 1717 (1982).