Academic

Jois on Stare Decisis & Cognitive Error

By Lawrence Solum

Goutam U. Jois (United States Court of Appeals, Second Circuit) has posted Stare Decisis is Cognitive Error on SSRN. Here is the abstract:

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.

And from the paper:

In the strongest form of the argument, our cognitive biases and heuristics make reliance on precedent unreliable. Therefore, courts should essentially engage in ?de novo review? every time. A court would not be barred from following precedent -- such a rule would be patently absurd -- but there would be a strong presumption against doing so. On appellate review, a court would critically examine the lower court?s citation to precedent. The appellate court would be especially vigilant to monitor whether the district court was following precedent as a heuristic, for example, by evaluating the district court?s decision as measured against the five factors outlined in the previous part. For example, if and when the iBasis case were appealed to the First Circuit, the First Circuit should be wary of the decision below because there are strong grounds to think that the iBasis court relied on precedent -- and non-biding precedent at that -- as a heuristic.266 Moreover, in the strongest form of the argument, not only would the practice of stare decisis reflect cognitive bias, but the doctrine itself could be seen as arising as a reflection of bias -- and nothing more.

And:

Stare decisis is defended on a variety of grounds. If the hypothesis I advocate takes hold, and prior judicial decisions have diminished sway -- even in like cases -- will the legal system fall apart at the seams? If stare decisis ?controls the caprice of judges by requiring them to suppose that all similar future cases will be decided according to their instant decision,?272 a weaker role for precedent might encourage the caprice of judges. If stare decisis is ?prudential? and ?pragmatic,?273 a weaker role for precedent might lead to imprudent and impractical outcomes. If stare decisis enables efficiency, a weaker role for precedent might throw parties? prospective planning into disarray and harm our country?s economic prospects. I do not dwell on these possible objections to my argument because I find them to be a canard. First, as others have pointed out, the increasing number of unpublished dispositions at the court of appeals level and oral decisions at the district court level means that a large number of cases are taken out of the ?stare decisis database,? so to speak. Second, as Nelson has thoroughly explained, a decreased reliance on stare decisis by no means suggests that chaos will reign. Third, it is unlikely that a decreased reliance on stare decisis will undermine efficiency goals, as it is unclear whether the current system furthers those goals in the first place.

Provocative and worth a read.

Full post as published by Legal Theory Blog on March 18, 2009 (boomark / email).