Justice Holmes's observation that the law is a product of empirical experience, not a problem of mathematics, 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.
"The Dynamic Cycle of Legal Change,"
Tennessee Journal of Law & Policy: Vol. 9
, Article 3.
Available at: http://trace.tennessee.edu/tjlp/vol9/iss2/3