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Tracking Inconsistent Judicial Behavior

International Review of Law & Economics (2012)

31 Pages Posted: 16 Jul 2009 Last revised: 17 Nov 2012

Anthony Niblett

University of Toronto - Faculty of Law

Date Written: October 19, 2012


This paper explores the phenomenon of inconsistent judicial decisions. We analyze inconsistency in 174 legal decisions from the California Court of Appeal that determine whether or not an arbitration provision in a contract is enforceable as written. We map the facts of cases and introduce a new methodology for measuring inconsistency, directly comparing each case with every precedent. Our results indicate that cases are inconsistent with about one-quarter of relevant precedents. Inconsistency is highly correlated with conflicting political ideology of the judges on the benches that hear the two cases. Inconsistency also correlates with the publication of cases and the non-publication of precedents.

Keywords: Judicial behavior, Inconsistency, Arbitration, Contract enforcement

JEL Classification: K40, K41, K12

Suggested Citation

Niblett, Anthony mname, Tracking Inconsistent Judicial Behavior (October 19, 2012). International Review of Law & Economics (2012). Available at SSRN: or

Anthony Niblett (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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