Judicial Excess: The Political Economy of the American Legal System
This book draws upon economic and political theory as well as recent history in examining the legal system's role in American society. By demonstrating the evolution legal institutions have undergone since the nation's founding, the author provides a view of modern-day judicial and regulatory processes which is both unexpected and disturbing. Due to this evolution, the courts and regulatory agencies have become the predominant forums for addressing societal disputes whether or not those...
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This book draws upon economic and political theory as well as recent history in examining the legal system's role in American society. By demonstrating the evolution legal institutions have undergone since the nation's founding, the author provides a view of modern-day judicial and regulatory processes which is both unexpected and disturbing. Due to this evolution, the courts and regulatory agencies have become the predominant forums for addressing societal disputes whether or not those disputes are amendable to legal resolution. Non-legal dispute resolution alternatives are undergoing steady diminution as political and economic power accrues to a legal aristocracy which seeks profit-maximization and the capture of influential policy-making roles. Contents: Introduction; Foundations of the American Legal System; The Evolution of Legal Standards; Minimization of Risk Through Law; Judicial Government; Social Impacts of the Legal System; The Law Industry; Toward a New Legal Paradigm; References.Author Biography: James Robert Forcier is Adjunct Instructor at Golden Gate University and Regulatory Property Manager at Pacific Bell in San Francisco.
Introduction1IFoundations of the American Legal System13The Judiciary as Set Forth in the U.S. Constitution13The Legalization of Dispute Resolution19The Professionalization of Adjudication26IIThe Evolution of Legal Standards35Redefining Legal Standards37The Transformation of Tort Liability43From Economic to Social Regulation52IIIMinimization of Risk Through Law65Expanding the Research of Law67Legal Risk Mitigation76Law and Personal Responsibility80The "Litigation Explosion"82IVJudicial Government91The Role of the Judge92Constraints on Judicial Power93The Growth of Law99Legal Realism and Judicial Activism100"Government by Litigation"108The Loss of Constitutionality112The Impact on Administrative Law and Public Administration115VSocietal Impacts of the Legal System127Economic Impacts128Regulation and Technology131Litigating Technological Disputes133Reducing Court Involvement in Technological Dispute138Litigation as a Way of Doing Business140The Role of Attorneys145The Impacts on Business152The Problem of Liability154The Diversion of Financial Resources161Societal Misuse of the Courts162The "Learning Curve" of Special Interest Litigation165VIThe Law Industry173The Legal System as Industry174Structure of the U.S. Economy178Legal Industry Non-Competitiveness: Pricing181Legal Industry Non-Competitiveness: Lack of Independence183Providing a Supply of Attorneys184The Lawyer as Judge191The Problem of the Legal Approach194The Effect of Oversupply on Lawyering197Legal System Alternatives200An Unregulated Industry203Power and Privilege206VIITowards a New Legal Paradigm213The Threat of Legal Industry Growth217Transferring Responsibility via Litigation and Regulation219The Legal Industry and the Competitive Marketplace224The Exercise of Control in a Mixed Economy229Regulation of the Person231Regulation of the Activity232Problems With Regulation235Increased Reliance on Market Controls237Reestablishing the Proper Role of Law in Government241Public Participation242Conclusion246References253
