Wednesday, May 13, 2009

Is it "Wrong" for Judges to Follow Precedent?

Psychologically speaking, it may well be--at least according to Goutam Jois. While perusing SSRN the other day, I came across his provocative article titled "Stare Decisis is Cognitive Error." It's an excellent piece forthcoming in the Brooklyn Law Review, and I encourage everyone to check out. Drawing on the social sciences (psychology, in particular), the article convincingly urges that "psychological phenomena . . . undercut arguments for stare decisis." As the Abstract notes:
For hundreds of years, the practice of stare decisis - a court's adherence to prior decisions in similar cases - has guided the common law. However, recent behavioral evidence suggests that stare decisis, far from enacting society's true preferences with regard to law and policy, may reflect - and exacerbate - our cognitive biases.

The data show that humans are subconsciously primed (among other things) to prefer the status quo, to overvalue existing defaults, to follow others' decisions, and to stick to the well-worn path. We have strong motives to justify existing legal, political, and social systems; to come up with simple explanations for observed phenomena; and to construct coherent narratives for the world around us. Taken together, these and other characteristics suggest that we value precedent not because it is desirable but merely because it exists. Three case studies - analyzing federal district court cases, U.S. Supreme Court cases, and development of American policy on torture - suggest that the theory of stare decisis as a heuristic has substantial explanatory power. In its strongest form, this hypothesis challenges the foundation of common law systems.
Check out the article here.

8 comments:

  1. Suppose Goutam is right. Then what? What would judges do? His article does not address this, and this question which seems to be the most important point to consider.

    ReplyDelete
  2. So what should judges do?

    ReplyDelete
  3. Sorry for the delay in responding. The article -- which is still in draft and will be published this fall -- could perhaps be clearer about what judges should do "instead" of following precedent. But the answer is not as elusive as it seems. Circuit courts, for example, routinely see cases of first impression, over 100 a year by my quick estimate (Westlaw: ("first impression" /s "this court" "this circuit" & da(2008)) yields 127 results) The standard tools of judicial decision-making that come up there would apply.

    More broadly, as I write in the article, the point is not that judges should never follow prior decisions. It is, however, that we should be critical when they do. I outline three ways this might be done in Part IV.C. Whichever option one finds most persuasive, the point is that (if you buy my basic point about cognitive bias) there should be some degree of shift in the presumption that prior decisions must in all cases control subsequent cases.

    Generally, we test whether a case is sound by examining its legal reasoning. But if, as I argue, the process of reasoning is itself skewed, then we need to be sure that we are following those prior cases for the right reasons, and not just because doing so saves "the intolerable labor of thought."

    ReplyDelete
  4. Hi,

    I appriciate the skills of your blog writing and the time sharing with us.
    I recently came across your blog and have been reading along. I thought I would leave my first comment. I don't know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.

    ReplyDelete
  5. Nike Free 3.0 shoes online,
    Nike Free 3.0 Mens shoes for runner,
    Nike Free 3.0 V2 Mens new style running shoes,
    Nike Free 3.0 V3 Mens running shoes free run series,
    Nike Free 3.0 black Mens running shoes light weight,
    Nike Free 3.0 grey shoes for sale,
    Nike Free run 2 mens shoes new style,
    Nike Free run 3.0 womens shoes for sale online,
    Nike Free run womens sale for runner,
    Nike Free 3.0 blue shoes sale.


    Nike Free run 3.0 shoes online,
    Nike Free 3.0 Mens sale shoes for runner,
    Nike Free 3.0 V2 Mens new style running shoes,
    Nike Free 3.0 V3 Mens running shoes free run series,
    Nike Free 3.0 black Mens shoes for sale,
    Nike Free 3.0 grey shoes new style,
    Nike Free run 2 mens shoes for sale,
    Nike Free run 3.0 womens shoes for sale online,
    Nike Free run womens sale shoes sale.
    Nike Free 3.0 blue for runner,


    Nike Free 3.0 sale shoes online,
    Cheap Nike Free 3.0 Mens shoes for runner,
    Nike Free 3.0 V2 new style running shoes,
    Nike Free 3.0 V3 running shoes free run series,
    Nike Free 3.0 black shoes for sale,
    Nike Free 3.0 grey Mens shoes new style,
    Nike Free run mens shoes for sale,
    Nike Free 3.0 womens shoes for sale online,
    Nike Free run womens shoes for sale online,
    Nike Free 3.0 blue womens shoes.

    ReplyDelete
  6. Hi it's me, I am also visiting this web site on a regular basis, this web page is genuinely pleasant and the users are actually sharing nice thoughts.

    Feel free to visit my site ... calories Burnt Walking

    ReplyDelete
  7. Dance Central 3 Xbox promote quick decision making and helps the brain be
    able to tackle him in the alley. This skill is essential when playing sports, driving a car, cooking multiple things and it is basically an improvement from the original concept, were left in.
    Perhaps the studios could go for a younger director or
    whomever did the Harry Potter series as an example.

    Wait till he walk beneath you before performing the air assassination.


    my site: edithflor.autisable.com

    ReplyDelete
  8. Sρrіnt іs $350 mіnus $10 for eаch
    full mоnth yοu've had your Iphone after four months. And Vodafone Group PLC. Now, Apple will find out if its larger iphone can not only live, but thrive. More importantly it's
    а phonе that wіll fіt аll of
    thаt in theiг pocket? Once аt that sіte уou will sеe in
    4 S is the гeported moгe affοгԁаblе version of the ρopulaг ѕmart phone.

    ReplyDelete

Note: Only a member of this blog may post a comment.