When Rules are Made to Be Broken

66 Pages Posted: 1 Mar 2013 Last revised: 29 Jul 2014

See all articles by Zev J. Eigen

Zev J. Eigen

Syndio Solutions

David Sherwyn

Cornell University

Nicholas Menillo

Cornell University - Law School

Date Written: July 20, 2014


When do judges follow rules expected to produce unjust results, and when do they intentionally misapply such rules to avoid injustice? Judicial rule-breaking is commonly observed 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 in applications of criminal sentencing rules. Much less is understood 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 such decisions. This Article is the first to theoretically assess and empirically analyze judicial rule-breaking in the commonplace setting of applying two rules regarding sexual harassment. We find that the likelihood of rule-breaking increases when judges perceive that pleas to legislatively or judicially correct the rule that produces unfair results would go unanswered.

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

JEL Classification: K1, K19, K4, K41

Suggested Citation

Eigen, Zev J. and Sherwyn, David and Menillo, Nicholas, When Rules are Made to Be Broken (July 20, 2014). Northwestern University Law Review, Forthcoming, Northwestern Public Law Research Paper No. 13-04, Available at SSRN: https://ssrn.com/abstract=2225978

Zev J. Eigen (Contact Author)

Syndio Solutions ( email )

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HOME PAGE: http://www.synd.io

David Sherwyn

Cornell University ( email )

School of Hotel Administration
Ithaca, NY 14853
United States

Nicholas Menillo

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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