The Hollowed Out Common Law

Abstract

We measure the evolution of the common law using a comprehensive data set of cases regarding the enforceability of online consumer contracts. We find a steady decline in the number of cases adjudicated in state courts relative to federal courts, and a parallel rise in class actions migrating to federal courts. Erie notwithstanding, the common law is driven by federal court decisions, building incrementally on each other rather than state law. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions regardless of the state law that the case may have arisen under.

By uclalaw