Tuesday, June 9, 2009

Is it "Wrong" for Judges to Follow Precedent? (Revisited)

About a month ago, I shared Goutam Jois' interesting article, Stare Decisis is Cognitive Error, with our readers. Some of our commenters took issue with the practical significance of Goutam's piece, and--given the interesting nature of the discussion--I wanted to share his response with our readers:
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."
I have to say, Goutam's defense of his piece is quite persuasive. First, academic articles are not--nor need they be--purely pragmatic. And the skeptical "solution" he prescribes makes a lot of sense in light of his findings. I'm curious to hear what others think.

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