Perspectives on Law and Legal Institutions as Complex Adaptive Systems.

Abstract

This dissertation employs various theoretical and methodological perspectives to consider the “evolution” of the law and “law as a complex adaptive system.” Chapter 2 addresses the strategic institutional conditions that produced Chief Justice Rehnquist’s majority opinion in Dickerson v. United States. In the wake of the Chief Justice’s ruling, legal scholars grappled to interpret this apparently anomalous decision. This process produced a litany of deeply unsatisfactory explanations for the Chief’s behavior. Chapter 2 rejects all of these existing explanations and instead outlines a game theoretic account for the Chief’s decision in this very important Miranda related case. Applying network theory, Chapter 3 considers the social topology of the American federal judiciary. Scholars have long asserted that social structure is an important feature of a variety of societal institutions. However, to date, such social considerations have not been formally integrated in positive legal theory. Using the flow of law clerks as a proxy for social and professional linkages between jurists, Chapter 3 offers a variety of visualizations and analytics useful for considering the physical properties of the judicial social network. Chapter 4 considers the ‘evolution’ of the law in the early jurisprudence of the United States Supreme Court. Relevant dynamics include but are not limited to doctrinal importation, path dependence, cross-fertilization, mutation, fitness and selection. Chapter 4 explores a subset of these dynamics in the applied context of the early United States Supreme Court (1791-1835). Justices on the early United States Supreme Court relied upon a wide variety of sources as evidence in support of their arguments. Chapter 4 offers both descriptive data regarding the magnitude of references and identifies the extent to which those references imported ideas from foreign sources. Next, it applies the tools of network science to measure the structural importance of these foreign law infused decisions. While the empirical results are relevant to the ongoing debate regarding the Supreme Court's reliance upon foreign sources, there is something far more fundamental at stake. Specifically, Chapter 4 introduces the “legal genome project” a new conceptual framework useful for understanding the “evolution” of the law.