Georgia State University Law Review

Volume 24
Article 6
Issue 4 Summer 2008

March 2012

Dynamical Jurisprudence: Law as a Complex

System
Gregory Todd Jones

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 Jones: Dynamical Jurisprudence: Law as a Complex System

DYNAMICAL JURISPRUDENCE:
DYNAMICAL JURISPRUDENCE: LAW AS A
COMPLEX SYSTEM
SYSTEM

Jones**
Gregory Todd Jones

Vast flocks of English starlings gather over the roost at dusk and
glide through thethe air spectacular display
in aa spectacular
air in of spatial
display of coherence. I1
spatial coherence.
Both the evolutionary, or ultimate cause, of flocking behavior, and
the proximate
proximate mechanisms that makes this performance
performance possible are
still relatively poorly understood. 22
relatively Flocking, along with schooling
schooling in
fish33 and swarming in insects,
insects,44 was until recently
recently believed to be
driven by one or more leaders, whose followers percolated percolated the
behavior
behavior through
through the group. We are now beginning to discoverdiscover that
this collective behavior
behavior results not from leadership, but emerges
emerges from
individuals following simple sets of local rules. 5
individuals
Highly multidisciplinary teams of scientists from anthropology,
Highly multidisciplinary anthropology,
biology, computer science, ecology, economics,
computer science, economics, physics, political

•* Faculty
Faculty Research
Research Fellow,
Fellow, Georgia
Georgia State
State University College of
University College of Law; Director of
Law; Director of Research,
Research,
Consortium
Consortium on Negotiation
Negotiation and Conflict Resolution; Director, Computational
Computational Laboratory
Laboratory for Complex
Complex
Adaptive Systems.
1. For an excellent
1. excellent resource
resource summarizing an European Union study of starling flocking for the
purpose of employing
employing complex
complex systems principles to shed light on collective
collective animal behavior, including
dramatic
dramatic video footage and still photographs, see http://angel.elte.hulstarling/index.html(last
http'J/angel.elte.hu/starlinglindex.html (last visited
Mar 23,23, 2008).
2. See generally,
generally, Michele Ballerini,
Ballerini, et al., Empirical Study of Large.
aI., An Empirical Large, Naturally Occurring
Naturally Occurring
Starling Flocks: A Benchmark in Collective
Starling Collective Animal Behaviour,
Behaviour, ANIMAL BEHAVIOUR
BEHAVIOUR (forthcoming,
2008), available
2008), available at http://arxiv.org/ftp/arxiv/papersl0802l0802.1667.pdf(last
http://arxiv.org/ftp/arxiv/papers/0802/0802.1667.pdf (last visited Mar 23, 2008).
Mar 23,2008).
3. See generally,
generally, Yoshinobu
Yoshinobu Inada & & Keiji Kawachi, Order and Flexibility
Order and Flexibility in the Motion of Fish
Fish
Schools, 214J.
Schools, 214 J. OF THEOR. BIOL. 371 (2002).
OFTHEOR. (2002).
4. See generally,
generally, ERICERIC BONABEAU, SWARM INTELLIGENCE: FROM NATURAL TO ARTIFICIAL
FROM NATURAL ARTIFICIAL
SYSTEMS (1999).
SYSTEMS (1999).
5. Indeed,
5. Indeed, recent
recent work has demonstrated
demonstrated that three simple local rules can capture essential flockingflocking
behavior:
behavior:
1.
I. Separation: crowding local flockmates.
Separation: steer to avoid crowding
2.
2. Alignment:
Alignment: steer towards the average
average heading of local flockmates.
oflocal
3.
3. Cohesion:
Cohesion: steer to move toward the average position of local local flockmates.
For aa web
For web sitesite that includes aa simulation
that includes simulation allowing experimentation
experimentation with these rules, an excellent
summary of
summary of the
the relevant theory, and
relevant theory, and an exhaustive
exhaustive catalog of resources related to collective
collective group
movement,
movement, see http://www.red3d.con/cwr/boids/ (last
see http://www.red3d.comlcwrlboidsl (last visited
visited mar
mar 23,
23, 2008).
2008). For
For another simulation of
this
this behavior,
behavior, withwith access
access toto the
the underlying code, see
underlying code, see URI
URI WILENSKY,
WILENSKY, NETLoGo
NETLOGo FLOCKING MODEL,
CENTER
CENTER FOR FOR CONNECTED
CONNECTED LEARNINGLEARNING AND COMPUTER-BASED MODELING,
AND COMPUTER-BASED MODELING, NORTHWESTERN
UNIVERSITY,
UNIVERSITY , EVANSTON,
EVANSTON, lL. IL. (1998),
(1998), http://ccl.northwestem.edu/netlogo/models/Flocking.
http://ccl.northwestem.edulnetiogo/modelsIFlocking.

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 Georgia State University Law Review, Vol. 24, Iss. 4 [2008], Art. 6

874 UNIVERSITY LAW REVIEW

GEORGIA STATE UNIVERSITY [Vol. 24:4
[Vol.

science, psychology, mathematics, sociology, and numerous other

begun to recognize that large systems of interacting
fields have begun interacting
heterogeneous agents often display very complex
heterogeneous complex behaviors that
behaviors of the individual
studying the behaviors
cannot be easily deduced by studying
collective behaviors are now
agents. Lessons from these emergent collective
being applied to help us rethink the dynamics of human behavior.

Wouldn't it be worthwhile if we could identify and understand

understand
individualhuman behaviors
individual that result
behaviors that result in dramatic human group
dramatic human group
66
behavior -- and
behavior and use this
this understanding optimally design
understanding to optimally design
77
institutions
institutions that
that constrain
constrain this behavior
behavior in ways that
that promote
promote
social
social welfare?

dynamics of forest fires reveals that the

examination of the dynamics
A close examination
related to the density of the trees.88 This is
extent of damage is closely related
particularly surprising. However, computer simulations
not particularly simulations reveal
9
observation offers more nuance. Holding other variables
that this observation
such as combustibility, rainfall, etc. constant, computational
computational results
show that a fire started on one end of an artificial forest with 57% 57%
density would typically result in about 10% 10% of the forest burning
before the fire burned itself out.10
10 The same artificial forest with 60%
same artificial
density would result in more than 75% 75% of the forest destroyed."l
destroyed. 11

6. See generally, A. Stallings, On Theory

generally, Robert A. Behaviorand Empirical
Theory in Collective Behavior EmpiricalPatterns in
Patterns in
a Riot Process,
Process, 41 AM. SOCIOWGICAL
SOCIOLOGICAL REv. REv. 749 (1976);
(1976); Mark
Mark Granovetter, Threshold Models 0/
Granovetter, Threshold of
Collective Behavior,
Behavior,83 A. J. S. 1420 (1978).
(1978).
7. See generally,
generally, Marcel
Marcel Fafchamps, Spontaneous Emergence, 2 TOPICS
Market Emergence,
Spontaneous Market ToPICS ININ THEORETICAL
THEORETICAL
ECONOMICS 1 (2002) available
ECONOMICS http://www.bepress.com/bejte (last visited
at http://www.bepress.com/bejte
available at visited Mar 23, 2008).
Barbara Drossel & Franz Schwabl,
generally, Siegfried Clar, Barbara
8. See generally, Forest Fires
Schwabl, Forest and Other
Fires and
Examples of o/Self-Organized Criticality, 8 J. PHYS.: CONDENS.
Self-Organized Criticality, CONDENS. MATrER
MATIER 6803
6803 (1996).
(1996).
generally,Barbara
9. See generally, Barbara Drossel & Franz Schwabl, Self-Organized
Franz Schwabl, Self-Organized Critical
Critical Forest-Fire Model, 69
Forest-Fire Model, 69
PHYS. REv. LETTERS simulation of these dynamics, with access to the underlying
(1992). For a simulation
LEITERS 1629 (1992).
code, see URI WILENSKY, NETLOGO
code, NETLoGO FIRE FIRE MODEL, CENTER
CENTER FOR CONNECTED LEARNING AND
CONNECfED LEARNING AND
COMPUTER-BASED
COMPUTER-BASED MODELING, NORTHWESTERN
NORTHWESTERN UNIVERSITY,
UNIVERSITY, EVANSTON,
EVANSTON, IL. (1998),
(1998),
http:/lccl.northwestem.edu/netlogo/models/Fire.
http://ccl.northwestem.edulnetlogo!modelsIFire.
reported are typical averages
10. These models are stochastic and results reported
10. averages over a series of simulation
runs.
more variables that may affect outcomes
11. Clearly, there are many more
11. outcomes and these damage percentages
damage percentages
simulations are intended to show differences
are not intended to be accurate estimates. The simulations
are outcomes
differences in outcomes
demonstrate the isolated non-linear effect
relative to each other and to demonstrate effect of density.

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 Jones: Dynamical Jurisprudence: Law as a Complex System

20081
2008] LAW AS A COMPLEX SYSTEM
COMPLEX SYSTEM 875

What this exercise

exercise demonstrates,
demonstrates, that may not be immediately
immediately
obvious, is that a very small increase
increase in density results in a dramatic
increase
increase in forest burned. The relationship between density and
destruction
destruction is a highly non-linear one.

worthwhile if we could understand

Wouldn't it be worthwhile understand this non-
linearity
linearity and take its possibility
possibility into account
account when designing
designing
regulation?
regulation?

Thomas Schelling, the 2005 Nobel Laureate in Economics, and

one of the first to apply emergence
emergence and nonlinear
nonlinear dynamics to
questions
questions of public policy, used a checkerboard demonstrate that a
checkerboard to demonstrate
small preference
preference for similarity with neighbors
neighbors could lead to
disproportionately large levels of segregation. 12
disproportionately 1
2 Today, we are
fortunate to have computers
computers to replicate
replicate Schelling's studies and,
much like the forest simulations demonstrate a
fires described above, simulations
non-linear
non-linear relationship between
between preference for similarity
similarity and
13
13
emergent
emergent segregation. And much like the flocking starlings
discussed above, Schelling's
Schelling's systems of interacting
interacting heterogeneous
agents display segregation
segregation behavior
behavior that cannot be derived from the
individual for similarity.
individual preferences for similarity. 14 14

Some of our recent work in the Consortium on NegotiationNegotiation and

Conflict Resolution's Computational Laboratory Laboratory for Complex
Adaptive Systems takes agents from Schelling's chessboard and
presents them with a cooperative network.'155
cooperative task in a complex social network.

12. Thomas C. Schelling, Models ofSegregation,

Segregation, 59 Am.
AM. ECON. REv. 488 (1969). For a simulation
simulation
of these segregation
segregation dynamics, with access to the underlying code, see URI WILENSKY, WILENSKY, NETLoGO
NETLOGo
SEGREGATION
SEGREGATION MODEL, CENTER FOR CONNECTED CONNECTED LEARNING
LEARNING AND COMPUTER-BASED
COMPUTER-BASED MODELING,
NORTHWESTERN
NORTIlWESTERN UNIVERSITY,
UNIVERSITY, EVANSTON,
EVANSTON, IL. (1998),
(1998), http://ccl.northwestem.edu/netlogo/
http://ccl.northwestern.edulnetlogo/
models/Segregation.
models/Segregation.
13. Id.
Id.
14. Id.
!d.
15. See Figure One. Complex social network
IS. network architectures
architectures allow for agents with a wide range of of
interaction
interaction partners,
partners, not artificially limited by the adjacent squares
squares on a checkerboard,
checkerboard, a toroidal, two-
non-bordered space. our
dimensional, non-bordered Our simulations also differ from Schelling's
Schelling'S in that agents are
engaged
engaged in a cooperative
cooperative task rather than being limited
limited to merely
merely making decisions about
making decisions about moving to
satisfy preferences
preferences for similarity. See Gregory Todd Jones & & Travis Parents Involved in
Travis Lloyd, Parents
Community Schools v. Seattle
Seattle School
School District
DistrictNo.
No.1I et al.:
al.: Computational
ComputationalModels of Prejudice and the
Prejudice and

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 Georgia State University Law Review, Vol. 24, Iss. 4 [2008], Art. 6

876 GEORGIA
GEORGIA STATE
STATE UNIVERSITY
UNIVERSITY LAW
LAW REVIEW
REVIEW [Vol.
[Vol. 24:4
24:4

\,7

Figure One: Segregated

Segregated Agents
Agents in a Complex Social Network
Complex Social Network
(full color diagram available
available at:
http://www.gregorytoddjones.com/publications.htm).
http://www.gregorytoddjones.com/publications.htm).

Because agents can be identified

identified by some arbitrary
arbitrary tag (here, their
strategies -
color), it is possible for agents to employ prejudicial strategies
treating agents with a different color differently than they treat agents
with their same color.
We have shown that when the level of segregation
segregation is controlled
exogenously, by an institution such as the law, the success of of
increases - and social welfare decreases - as
prejudicial strategies increases
prejudicial
segregation increases. More precisely, the success of prejudicial

Contact
Contact Hypothesis
Hypothesis (unpublished working paper, available from authors); Gregory Todd Jones &
& Travis
Lloyd, Computational
Computational Models
Models of Prejudice
PrejudiceReduction: Spatial Robustness and
Spatial Robustness Contact Hypothesis
and the Contact Hypothesis
(unpublished working paper, available from authors).
(unpublished

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 Jones: Dynamical Jurisprudence: Law as a Complex System

20081
2008] LAW AS A
A COMPLEX SYSTEM
SYSTEM 877

strategies
strategies increases
increases sharply, in a steep, nonlinear relationship to
increasing segregation. 16
increasing 16

100.0
00.0
00.0 - - - - - - -
70.0
00.0
-PreiLdce

I
00.0 ---~---

Cooper~icnl
40.0 -~~---

310
ZlO

10.0 -----
0.0
40 50
00 60
00 70 80
00 90
00 100 110
110
Perrentag PopUatian
Peroentage one Group
Population In One

Figure Two: The Relative

Relative Success
Success of Prejudicial Strategies
(Percentage) and Cooperation
Cooperation (Percentage) as a Measure
Measure ofof
Social Welfare
Welfare as Functions of Levels of Segregation
Segregation
(full color diagram available at:
http://www.gregorytoddjones.com/publications.htm).
http://www.gregorytoddjones.com/publications.htm).

One possible consequence

consequence of these characteristics
characteristics is that decisions
such as the Supreme
Supreme Court's Seattle School District
District v. Parents
Parents
17
Involved,
Involved,17 while expressly seeking to merely limit segregation
segregation plans
may essentially eviscerate Brown v. Board Education118 by virtue
Board of Education
of emergent nonlinearities.

16. See Figure

Figure Two. These steep s-shaped curves often indicate
indicate what is known as "phase
"phase
transitions,"
transitions," where small changes, or perturbations,
perturbations, to system variables can bring about large scale
scale
changes
changes in system
system properties.
properties.
17. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. _,127
___, 127 S.Ct. 2738, (2007).
18. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954).
(1954).

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878 GEORGIA STATE UNIVERSITY

UNIVERSITY LAW REVIEW
REVIEW [Vol. 24:4
(Vol.

Wouldn't worthwhile if law makers and the courts

Wouldn't it be worthwhile courts
understoodemergence
understood emergence and
and nonlinearity enough to consider
nonlinearity well enough
theirpossible
their possible consequences their decision
consequences in their making?
decision making?

There is a small, but growing cadre of legal scholars who do think

that it would be worthwhile to consider
consider the implications
implications of networks,
networks,
complex systems, and nonlinear dynamics to the future of the
nonlinear dynamics to the future of the law. law.'199
The breadth
breadth of current substantive applications is impressive,
substantive applications
including
including jurisprudence, 20 law2021
jurisprudence,20 and economics, torts, 22 criminal
economics,21 torts,22
23242
law,23 environmental law,2 4 regulatory
law, environmentallaw,24 25 bankruptcy,26
law,25
regulatory law, bankruptcy, 26 mediation

19. We would be in good company-it

company-it has been suggested that the study study of networks, complex
systems, and and nonlinear dynamics has pervaded all of science. See Steven H. Strogatz, Exploring
nonlinear dynamics
Complex Networks, 410
Complex 41 0NATURE
NATURE 268 268 (2001).
(200 I).
20. See Thomas
Thomas Earl Geu, The Tao Tao ofJurisprudence:
Jurisprudence: Chaos, Brain Science,
Chaos, Brain Science, Synchronicity,
Synchronicity, and
and the
Law, 61 TENN. REV. 933,934-35
TENN. L. REv. 933, 934-35 (1994); Oona Hathaway, Path Path Dependence
Dependence in the Law: The Course
Course
and Pattern Change in aa Common Law System, 86
Pattern of Legal Change 86 IOWA L. REV. 601 (2001);
REv. 601 (2001); Eric Kades, The
The
Laws of Complexity and andthe Complexity of ofLaws: The Implications
Implications ofComputational Complexity Theory
Computational Complexity
for the Law, 49 RUTGERS
for RUTGERs L. REv. 403, 452-54,
L, REV. 452-54, 476 (1997); Lynn M. LoPucki,
LoPucki, The Systems Approach to
Law, 82 CORNELL REV. 479, 480-82 (1997); Randal C. Picker, Simple Games in aa Complex World:
CORNELL L. REv. World: A
GenerativeApproach to the Adoption of Norms,
Generative Norms, 64 U. CHI. L. REV.REv. 1225 (\997);
(1997); David Post, "Chaos
"Chaos
Prevailing
Prevailing on Every Continent": A New Theory of Decentralized
Decentralized Decision-Making
Decision-Making in Complex Systems
73 CHI.-KENT L. REv.
REV. \055
1055 (\999);
(1999); John M. M. Rogers && Robert
Robert E. Molzon,
Molzon, Some Lessons About the Law
from Self-ReferentialProblems
from Self-Referential Mathematics, 90 MICH. L. REV.
Problems in Mathematics, 992 (1992);
REv. 992 (1992); J. B. Ruhl, The Fitness
Fitness of
of
Law: Using
Using Complexity Theory to Describe
Describethe Evolution
Evolution of Law and Society and Its Practical
Practical Meaning
Meaning
for Democracy,49
for Democracy, 49 VAND. L. REv.
REV. 1407 (\996);
(1996); Robert E. Scott, Chaos Theory
Scott, Chaos Theory and
and the Justice Paradox,
Justice Paradox,
35 WM. &&MARYMARY L.L. REV. 329, 329-31 (1993).
(1993).
21. Mark
21. Mark J. Roe, Chaos
Chaos and Evolution
Evolution in Law and Economics, 109 HARV.
and Economics, REv. 641, 643-{)5
HARv. L. REV. 643-65
(1996).
(1996).
22. Edward
22. Edward S. Adams et al.,aI., At End of Palsgral
At the End Palsgraf There
There Is Chaos:
Chaos: An Assessment of Proximate
Proximate
Cause in Law and
Cause and Chaos
Chaos Theory, 59 59 U. Pm. REV. 507 (1997);
PITT. L. REv. (\997); Jeff L. Lewin, The Genesis
Genesis and
Evolution
Evolution of Legal Uncertainty
Uncertainty About "Reasonable
"ReasonableMedical Certainty", 57 MD. L. REv.
Medical Certainty", REV. 380, 389-93
(1998).
(1998).
23. Erica Beecher-Monas
23. Beecher-Monas & Edgar Garcia-Rill, Danger Danger at the Edge of Chaos:Chaos: Predicting
Predicting Violent
Behavior
Behavior in aa Post-Daubert
Post-Daubert World,
World, 24 24 CARDOZO
CARDozO L. REv. 1845 (2003);
REV. 1845 (2003); Susan W. Brenner, Toward
Toward a
Criminal Cyberspace: Distributed
CriminalLaw for Cyberspace: DistributedSecurity, Sci. & TECH.
Security, 10 B.U. J. SCI. (2004).
TEcH. L. I1 (2004).
24. Jim Chen,
24. Chen, Webs of Life: Biodiversity Conservation as aa Species of Information
Conservation as Information Policy, 89 IOWA
Policy, 89
L. REV. 495 (2004);
REv. 495 (2004); Gerald Andrews Emison, The PotentialPotentialfor Unconventional
Unconventional Progress:
Progress: Complex
Adaptive Systems and Environmental
Environmental Quality Policy, 7
Quality Policy, 7 DUKE ENVTL. L. & & POL'Y
POL'y FORUM 167 167 (1996);
Daniel A. Farber, Probabilities
Probabilities Behaving Badly: Complexity Theory Theory and
andEnvironmental
Environmental Uncertainty,
Uncertainty,3737
U.C. DAVIS L. REV. 145 (2003); William
REv. 145 William H. Rodgers, Jr., Where Environmental
Environmental Law and andBiology Meet:
OfPandas'
Of Pandas 'Thumbs, Sleepers, and Effective Law, 65 U. COLO. L. REV.
Thumbs, Statutory Sleepers, 25, 46-48 (1993);
REv. 25, (1993); 1.
J. B.
Ruhl, Thinking
Rubl, Thinking of Environmental
Environmental Law as a Complex Adaptive System-How System-How to Clean Clean Up the
Environment
Environment by Making
Making aa Mess of Environmental
Environmental Law, 34 34 HOUS.
Hous. L. REv. 933 (1997);
REV. 933 (1997); 1.
J. B. Ruhl,
B. Rubl,
Sustainable Development: A Five-Dimensional
Sustainable Development: Five-DimensionalAlgorithm Environmental Law, 18 STAN. ENVTL.
for Environmental
Algorithmfor ENvTL. L.J.
31 (1999).
31(1999).

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20081
2008) LAW
LAW AS COMPLEX SYSTEM
A COMPLEX
AS A SYSTEM 879

27
and other forms
and other forms of alternative dispute
of alternative resolution,27 administrative
dispute resolution, administrative
28 31
law,
law,28 capital 29
markets,29 telecommunications,
capital markets, legislative3 1 and
telecommunications,30 legislative
32 discrimination and equal opportunity, 33
judicial decision making,
judicial decision making,32 discrimination and equal opportunity/3
constitutional law,34 business
constitutional law,34 business law,
law/355 land use law,
land use 36 intellectual
law,36 intellectual

25. J.B.
25. J.B. Ruhl Salzman, Mozart and
Ruhl & James Salzman, and the Red
Red Queen: Problem of
Queen: The Problem Regulatory Accretion
of Regulatory
Administrative State,
in the Administrative GEO. L.J. 757
91 GEO.
State, 91 757 (2003); James Salzman
(2003); James Salzman & & J.B. Ruhl, ,Regulatory Traffic
Rubl, ,Regulatory
Jams, 22 WYO.
Jams, REv. 253 (2002).
WYO. L. REV. (2002).
26. Bernard Trujillo,
26. Bernard Pal/ems in aa Complex System: An
Trujillo, Patterns Empirical Study of
An Empirical of Valuation in Business
Bankruptcy Cases, 53 UCLA L. REV.
Bankruptcy Cases, REv. 357
357 (2005).
(2005).
27. Robert A. Creo,
27. Creo, Mediation 2004: The Art
Mediation 2004: Artist, 108
Art and the Artist, PENN ST. L. REV.
108 PENN 1017, 1031-45
REv. 1017,
(2004); Scott Understanding Conflict in aa Postmodern
H. Hughes, Understanding
Scott H. World, 87 MARQ.
Postmodern World, MARQ. L. REV.REv. 681
(2004); J. B. Rub~ Thinking
B. Ruhl, Adaptive System, 1997
Mediation as a Complex Adaptive
Thinking of Mediation 1997 BYU
BYU L. REV.REv. 777
777
(1997).
(1997).
28. Donald T. Hornstein,
28. Hornstein, Complexity Theory,
Theory, Adaptation, Administrative Law, 54 DUKE
Adaptation, and Administrative DUKE L.J.
LJ.
913 (2005);
(2005); Thomas R. McLean,
Mclean, Application AdministrativeLaw
Application of Administrative Law to Health Care Reform: The Real
Health Care
Politik of
Politik Quality Chasm, 16 J.L. &
Crossing the Quality
of Crossing HEALTH 65 (2001-2002); J. B. Ruhl,
& HEALTH Rubl, Complexity
Theory as aa Paradigm
Paradigm for Dynamical Law-and-Society System: AA Wake-Up Call
for the Dynamical Call for
for Legal
Reductionism and
Reductionism Administrative State, 45 DUKE L.J.
and the Modern Administrative (1996); J. B.
L.J. 849 (1996); B. Ruhl
Rubl & & Harold
Harold J.
Ruhl, Jr., The Arrow of the Law in Modern
Rubl, Jr., States: Using Complexity Theory to Reveal
Modern Administrative States: Reveal
the' Burgeoning of
IncreasingRisks the-Burgeoning
Diminishing Returns and Increasing
the Diminishing of Law Poses to Society, 30 U.C. DAVIS
REv. 405 (1997).
L. REV. (1997).
29. Lawrence Cunningham, From
Lawrence A. Cunningham, Chaotic Crashes:
From Random Walks to Chaotic Crashes: The Linear Genealogy of
Linear Genealogy of
Capital Market Hypothesis, 62
the Efficient Capital REV. 546, 581-92
WASH. L. REv.
62 GEO. WASH. (1994); Lawrence
581-92 (1994); Lawrence A.
CapitalMarket
Cunningham, Capital Mandatory Disclosure,
Theory, Mandatory
Market Theory, PriceDiscovery,
Disclosure, and Price Discovery, 5151 WASH. & & LEE L.
REv.
REV. 843, 854-59 (1994).
843,854-59 (1994).
30. Barbara A. Cherry, Telecommunications Economy and Regulation
Cherry, The Telecommunications as Coevolving
Regulation as
Implicationsfor
Complex Adaptive Systems: Implications Federalism, 59 FED. COMM.
for Federalism, COMM. L.J. 369369 (2006); Susan P.
HAsTINGS COMM.
Flag, 25 HASTINGS
BroadcastFlag,
Crawford, The Biology of the Broadcast
Crawford, COMM. & & ENT. L.J. (2003); Daniel F.
LJ. 603 (2003);
Spulber
Spulber & Christopher S.
& Christopher S. Yoo, On the Regulation
Regulation of Networks as as Complex Systems: AA GraphGraph Theory
Approach, 99 Nw. U. L. REV.
Approach, Supercommons: Toward a Unified Theory
REv. 1687 (2005); Kevin Werbach, Supercommons:
of Wireless Communication, 82 TEx. L. REV.
Wireless Communication, REv. 863 (2004).
Lorenzo, Complexity and
31. Vincent Di Lorenzo,
31. and Legislative DiscriminationLaws as a
Signatures: Lending Discrimination
Legislative Signatures:
Case, 12 J.L.
Test Case, 637 (1996); Vincent M.
& POL. 637
J.L. & Equal Economic Opportunity:
M. Di Lorenzo, Equal Corporate
Opportunity: Corporate
Responsibility in the New Millennium,
Social Responsibility
Social Millennium, 71 U. COLO. REV. 51 (2000); Vincent
COLO. L. REv. Vincent Di Lorenzo,
YALE LAW &
Exploratory Study, 12 YALE
Chaos: An Exploratory
Legislative Chaos:
Legislative & POL'y REV. 425,
POL'Y REv. 425, 432-35 (1994).
432-35 (1994).
32. Andrew W. Hayes, An Introduction Chaos and Law, 60 UMKC
Introduction to Chaos UMKC L. REv.
REV. 751, 764-73 (1992);
751, 764-73 (1992);
Jeffrey G. Miller, Evolutionary
Jeffrey Interpretation:Mr.
Statutory Interpretation:
EvolutionaryStatutory Mr. Justice Scalia Meets Darwin,
Justice Scalia Darwin, 20 PACE L.
REv.
REV. 409 (2000); David G. Post & & Michael Coastlineof the Law? Thoughts
Michael B. Eisen, How Long is the Coastline Thoughts
Fractal Nature
the Fractal
on the Nature of Legal Systems, 29 J. STUD. 545 (2000); Glenn Harlan Reynolds, Chaos
J. LEGAL STUD. Chaos
andthe
and Court,91 COWM.
the Court, REV. 110, 112-15
COLUM. L. REv. (1991).
112-15 (1991).
33. Daria Roithmayr, Entry: A Lock-In Model of Racial
Barriersto Entry:
Roithmayr, Barriers Racial Inequality,
Inequality, 86 VA. L. L. REV. 727
(2000).
34. Michael J. Gerhardt, The Role of Precedent Constitutional Decision
Precedent in Constitutional Making and
Decision Making Theory, 60
and Theory,
GEO. WASH. L. REv. 68, 114-15 (1991).
REV. 68,114-15 (1991).
35. Thomas Earl Geu, Chaos, Chaos, Complexity,
Complexity, and Coevolution: The Web of Law,
and Coevolution: Law, Management Theory,
Management Theory,
andLaw
and RelatedServices
Law Related Services at Millennium, 65 TENN. L. REv.
at the Millennium, REV. 925 (1998).
(1998).
36. Alistair M. Hanna, The Lond Use System, 13 PACE ENVTL. L. REV.
Land Use REv. 531, 538 (1996).
(1996).

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880 GEORGIA STATE UNIVERSITY

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[Vol. 24:4

property, 37 and political theory38

property/7 theory38 -- and this is surely not a complete
list. 39
39

In this Symposium edition of the Georgia State University

Georgia State University Law
Review, we are fortunate to have contributions
contributions from many of the
application of complex systems and dynamical
pioneers in the application
systems theory to the law. J.B. Ruhl, one of the first legal scholars
scholars to
apply complexity
complexity theory to his work, sets the stage by inviting us to
think about the law as a complex system. 40 40 To
aid those for which
which
this is a new enterprise, Ruhl provides
provides a primer
primer of complex systems
principles and suggests how certain characteristics
characteristics of the law may be
complex, in the technical definition
definition of the tenn.
term. Particularly
Particularly valuable
is Ruhl's taxonomy
taxonomy of complex systems principles paired with
examples from legal systems. Finally, Ruhl considers
tangible examples considers what
the implications
implications may be for legal system design when the law is
conceived as a complex adaptive system.
conceived
Next, along with collaborators
collaborators Doug Yarn,Yam, Reidar
Reidar Hagtvedt andand
Travis Llyod, I use evolutionary
evolutionary game theoretic simulation models to
explore the influence
influence of structure in complex social networks
networks where
pro-social, welfare optimizing behavior is possible, but not assured.41
pro-social, 41
It has been widely demonstrated that social capital, capital, or social
"connectedness," matters in these contexts.
"connectedness," matters in these contexts. We show that the
distribution of social capital also matters by exerting a negative
influence on pro-social
pro-social behavior that is shown to be statistically
independent from average social capital. We conclude conclude by suggesting
that institutions, including
including legal institutions,
institutions, designed to promote

37. Andrea M. Matwyshyn,

37. Matwyshyn, Organizational Code: AA Complexity Theory Perspective
Organizational Code: Perspectiveon Technology
Technology
and Intellectual
Intellectual Property Regulation, 11
Property Regulation, II J. TECH. L. &
& POL'Y
POL 'y 1 (2006).
I (2006).
38. Hope M. Babcock, Democracy's
38. Democracy's Discontent in a Complex World:
Discontent in World: Can
Can Avalanches,
Avalanches, Sandpiles,
Sandpiles,
and Finches
Finches Optimize Michael
Michael Sandel's Civic Republican Community?, 85 GEO. L. J.
Sandel's Civic J. 2085 (1997);
(1997);
Glenn Harlan Reynolds,
Reynolds,ls DemocracyLike Sex?, 48 V
Is Democracy AND. L. REv. 1635, 1639-40
VAND. 1639-40 (1995).
(1995).
39. II am grateful to J.B. Rubl
39. Ruhl for his web site, Complex Adaptive Systems Literature
Literature for Law and
Sciences, hosted by the Society for Evolutionary Analysis in Law, where many of the above
Social Sciences,
citations were discovered.
discovered. His bibliography is regularly updated and can be found at
http://law.vanderbilt.eduiseaVresources!readingscomplex.htm (last visited Mar 23, 2008).
http://law.vanderbilt.edu/seaVresources/readingscomplex.htm
40. J.B. Ruhl, Law's Complexity: AA Primer,
40. 24 GA. ST. U. L. REv. 883 (2008).
Primer, 24
41.
41. Gregory
Gregory Todd Jones, Douglas
Douglas H. Yarn, Reidar Hagtvedt, &
Yam, Reidar & Travis
Travis Lloyd, Homogeneity of of
Degree
Degree in Complex Social
SocialNetworks as a Collective
Collective Good, 24 GA. ST. U. L. REv. 929
Good, 24 929 (2008).

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 Jones: Dynamical Jurisprudence: Law as a Complex System

2008)
20081 LAW AS
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A COMPLEX SYSTEM 881

homogeneity in social
homogeneity capital may produce
social capital increases in
produce increases in social welfare
overall, properly thought of
and as such, is properly
overall, and as a collective
of as collective good.
good.
Daniel Katz and Derek
Katz and Stafford, political
Derek Stafford, scientists from the
political scientists the
Michigan, employ
University of Michigan, subset of tools from complexity
employ a subset
science, those of network
science, examine how the
network analysis, to examine the decision
decision
making individual judges may
making of individual may map to the judiciary's aggregate
the judiciary's aggregate
42
42
doctrinal output.
doctrinal OUtpUt. Katz Stafford hypothesize
Katz and Stafford that the decision
hypothesize that decision
making framework used
making framework particular jurist
used by any particular interpret and apply
jurist to interpret apply
impacted by a combination
sets of legal rules is impacted
sets jurists who
combination of jurists who are
prominent and socially
socially prominent
socially proximate. Their
socially proximate. Their work is at once
once an
excellent introduction
excellent network architecture
introduction to network architecture and analysis and an
analysis and
connections within the federal judiciary.
eerie look into the doctrinal connections
eerie
judical clerks as a proxy for proximity, they paint a
Using the path of judical
networks that make
picture of complex networks sense on their face and make
make sense
discover their own place in the links of
former law clerks anxious to discover of
jurisprudence. The real power
federal jurisprudence. power of the network approach is
revealed when they reorganize
revealed networks by demographics
reorganize the networks demographics such as
the party of the appointing president revealing sometimes surprising
relationships that may
relationships remained hidden.
may have otherwise remained
complexity theory principles call for the emergence
In general, complexity emergence ofof
interactions of agents following
co-evolved institutions from the interactions
co-evolved
simple local strategic rules. Relying on micro-level mechanisms mechanisms
hand" which produces optimal
"invisible hand"
similar to Adam Smith's "invisible
interactions of individuals
bottom up merely from the interactions
prices from the bottom
deregulation argue that
pursuing their own interests, proponents of deregulation
unnecessary to create efficient
top-down intervention is unnecessary efficient markets.
Barbara Cherry brings decades of telecommunications
Barbara Cherry telecommunications policy
expertise to bear in crafting her warning that the sustainability of
sustainability of
critical communications infrastructures will depend on the existence
communications infrastructures existence
43
43
of specific top-down legal rules. Framing her discussion with the

42. Daniel M. Katz, Social Architecture,

& Eric Provins, Social
Katz, Derek K. Stafford, & Architecture, Judicial Peer Effects
JudicialPeer
"Evolution" ofthe Law:
and the "Evolution"
and Towarda Positive
Law: Toward Theory ofJudicial
Positive Theory Judicial Social Structure,24 GA. ST. U. L.
Social Structure,
REv. 975 (2008).
43. Barbara A. Cherry, Maintaining Critical Rules
Maintaining Critical Enable Sustainable
Rules to Enable Communications
Sustainable Communications
ST.U. L. REv. 945 (2008).
Infrastructures,24 GA. ST.
Infrastructures,

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REVIEW [Vol. 24:4
[Vol.

principles of complex
complex systems, Cherry sets out certain institutional
boundary
boundary conditions that will be necessary
necessary to maintain emergent
emergent
properties
properties of widespread availability, affordability
affordability and reliability.
Bernard
Bernard Trujillo leads us on a deeply philosophical exploration of
exploration of
the nature 44
44
nature of modeling in the social sciences. He is critical of what
he sees as a long standing
standing reliance on linear
linear models with a stochastic
term
term added as a place
place holder for our ignorance.
ignorance. Trujillo advocates
advocates
replacing these conventional
replacing conventional random terms with others that may be
supplied by the mathematics
mathematics of complexity. He suggests that
nonlinear
nonlinear chaotic systems may be used to successfully successfully model
complex social forms, like the diffusion of legal doctrine, and brings
his theory to bear on two examples that define much of his other other
substantive scholarship:
scholarship: finance and bankruptcy
bankruptcy law.
Finally, Ted Blumoff, an ethicist and legal philosopher, employs a
social network analysis to examine
examine the nature of the action-omission
action-omission
network in the criminal law.45 45 Blumoff
Blumoff begins
begins with Hume's
Hume's
understanding
understanding that humans have a feeling of obligation to others that
radiates outward from themselves resembling a network with valence valence
that tends to attenuate
attenuate as the connections
connections become more remote. He
argues that omission accountability
accountability is a function of relationally
relationally
proximate
proximate networks with proximity being a function both of biology
and fiduciary relationships.
These papers embody significant breath both in analytical tools
and substantive application and as suggested
suggested earlier represent but a
small sample
sample of the growing
growing cadre of legal scholars putting
complexity science principles
principles to work in their research. As J.B. Ruhl
concludes, the goal shared
shared by this work is to make visible legal
system machinery
machinery that remains hidden when examined through the
dominant lens of linearity. 46 The recognition
linearity.46 recognition of complex attributes,
such as nonlinearity
nonlinearity and their consequences,
consequences, is a start, but muchmuch

44. Bernard
Bernard Trujillo, Randomness and
and Complexity in Social
Social Explanation:
Explanation: Evidence
Evidence from
from Finance
Finance
Bankruptcy Law, 24
and Bankruptcy
and 24 GA. ST. u. (2008).
U. L. REv. 911 (2008).
45. Theodore Y. Blumoff,
Blurnoff, On the Nature
Nature of the Action-Omission 24 GA.
Network, 24
Action-Omission Network, GA. ST. U. L. REv.
REV.
100
1001I (2008).
46. J.B. Ruhl, Law's Complexity: Primer,24 GA. ST. U. L. REv. 883
Complexity: A Primer, 883 (2008).
(2008).

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SYSTEM 883
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remains to
remains to be
be done
done before
before complex
complex systems
systems theory can offer
offer tangible
tangible
guidance for
guidance for institutional
institutional designers. Within thethe institution
institution of
of the
the law,
law,
we hope this Symposium edition
we hope this Symposium edition is seen step in that direction.
as a step direction.

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