When Rules are Made to Be Broken

Abstract:     
When do judges follow rules expected to produce unjust results, and when do they intentionally misapply such rules to avoid injustice? It is easy to observe and explain judicial rule-breaking when national dignity and morality are at stake (such as with abolitionist judges charged with applying federal fugitive slave laws) or when lives hang in the balance (such as applications of criminal sentencing rules). However, less is known about judicial rule-breaking in quotidian civil litigation, in spite of the sizeable impact on litigants and potential litigants, as well as the frequency with which judges face the decision to apply rules that must be ignored to produce just results at the expense of appearing incompetent and risking the creation of poor quality precedent. This Article is the first to theoretically assess and empirically analyze judicial rule-breaking with respect to two judge-made rules regarding sexual harassment. Judges tend to follow one rule where the impact on those affected by the rule is low, but tend to ignore another rule where the expected impact is great. The likelihood of rule-breaking increases when judges perceive that pleas to legislatively or judicially correct the rule would go unanswered.

Number of Pages in PDF File: 55

Keywords: judicial decision making, rules, employment law, discrimination, sexual harassment, affirmative defense, Ellerth, Farragher

JEL Classification: K1, K19, K4, K41

Accepted Paper Series