Judicial Resistance and Legal Change

73 Pages Posted: 18 Mar 2014 Last revised: 21 Nov 2017

See all articles by Matthew Tokson

Matthew Tokson

University of Utah - S.J. Quinney College of Law

Date Written: July 6, 2014


Conventional models of judicial behavior assume that, barring extraordinary circumstances, lower courts will comply with changes in governing law. The few studies that have examined judicial compliance with higher court decisions have concluded that judges quickly adopt even controversial new doctrines.

This Article challenges these conventional accounts of judicial compliance. It presents several surprising examples of widespread and persistent judicial defiance of new doctrines. Judges often apply old, overturned laws instead of new laws - and they do so in observable and predictable ways. For instance, this phenomenon is especially common when a low-decision-cost regime is replaced with a high-decision-cost regime, as when an old rule is changed to a new standard.

This Article posits that judges are influenced by biases and incentives that can cause them to strongly prefer familiar laws to unfamiliar ones and simple laws to complex ones. These preferences shape judicial behavior and can engender overt noncompliance with new laws. This Article proposes a new model of judicial compliance and demonstrates how the model can successfully predict future judicial behavior. It then suggests ways of reducing judicial resistance to legal change. The Article’s theoretical and empirical findings can also shed light on current legal debates, including broader debates about the efficacy of court-driven social change.

Keywords: Judicial Behavior, Legal Change, Behavioral Economics, Compliance, Sentencing, Patent, Copyright, Booker, Campbell, Saucier, Cognitive Bias, Status Quo Bias

JEL Classification: K40, K14

Suggested Citation

Tokson, Matthew J., Judicial Resistance and Legal Change (July 6, 2014). University of Chicago Law Review, Vol. 82, p. 901, 2015. Available at SSRN: https://ssrn.com/abstract=2410007

Matthew J. Tokson (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

HOME PAGE: http://https://faculty.utah.edu/u6012359-Matthew_Tokson/biography/index.hml

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