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Stare Decisis is Cognitive Error

Goutam U. Jois

affiliation not provided to SSRN

March 15, 2009

Brooklyn Law Review, Forthcoming

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.

Number of Pages in PDF File: 74

Keywords: stare decisis, precedent, cognitive bias, social psychology, situationism, behavioral law and economics

JEL Classification: D03

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Date posted: March 18, 2009 ; Last revised: April 23, 2009

Suggested Citation

Jois, Goutam U., Stare Decisis is Cognitive Error (March 15, 2009). Brooklyn Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1360479

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