The Dynamic Cycle of Legal Change

9 Tennessee Journal of Law & Policy 10 (2013)

16 Pages Posted: 11 Feb 2013 Last revised: 23 Oct 2013

See all articles by John Martinez

John Martinez

University of Utah - S.J. Quinney College of Law

Date Written: February 11, 2013

Abstract

Justice Oliver Wendell Holmes Jr. famously observed that the life of the law is not logic, but experience. Holmes’ observation, however, still leaves us with the task of figuring out how the legal system actually works. Although Holmes made his statement over 130 years ago, there is still no universally accepted analytical approach for describing how the American legal system creates and changes the law. This article proposes a "Dynamic Cycle of Legal Change" as a model for understanding the structure and operation of the American legal system.

Part I first posits that we should consider the legal system from an "information systems" perspective. Part II then describes the proposed "Dynamic Cycle of Legal Change" (DCLC) as an information system model of the legal system. Part III illustrates the operation of the DCLC in three settings: common law, legislation and direct democracy. Illustrations include settings of gender equality, fame as a property asset, palimony claims, crime victims bills of rights, same-sex marriage statutes, solar acts, and the California coastal protection initiative and subsequent statute.

Although the article is primarily descriptive of how the American legal system operates, it can perhaps serve as the foundation for the normative task of determining how the system should operate as well.

Keywords: jurisprudence, retroactivity, analytical framework, gender equality, fame, palimony, crime victims, same-sex marriage, solar acts, coastal protection

JEL Classification: D80, D81, D84, D89, H00, H10, H11, H19, J70, J71, J78, J79, K10, K11, K12, K13, K14, K19, K40, K41

Suggested Citation

Martinez, John, The Dynamic Cycle of Legal Change (February 11, 2013). 9 Tennessee Journal of Law & Policy 10 (2013), Available at SSRN: https://ssrn.com/abstract=2215045 or http://dx.doi.org/10.2139/ssrn.2215045

John Martinez (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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