The Vanishing Common Law Judge?

39 Pages Posted: 17 Mar 2016 Last revised: 2 Nov 2017

See all articles by Neal Devins

Neal Devins

William & Mary Law School

David Klein

Eastern Michigan University

Date Written: March 16, 2016


The common-law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding-dicta dichotomy. In this essay, we make use of original empirical research to study the level of deference U.S. District Judges exhibit toward higher courts and whether the level of deference has changed over time. Through an analysis of citation behavior over an 80-year period, we document a dramatic shift in judges’ practices. In the first fifty years of our study, district judges were not notably deferential to either their federal court of appeals or the U.S. Supreme Court and they regularly assessed the relevance and scope of precedents from those courts and asserted their prerogative to disregard many of them. Since then, judges have become far more likely to treat a given higher court precedent as authoritative. In so doing, lower courts have embraced a hierarchical view of judicial authority at odds with the common-law style of judging. The causes of this shift are multifold and likely permanent; we discuss several of them, including dramatic changes in legal research, the proliferation of law clerks throughout the legal system, the growing docket of lower court judges, the Supreme Court’s increasing embrace of judicial hierarchy, and the growth of the administrative state.

Keywords: courts, federal courts, common law, judging, precedent

Suggested Citation

Devins, Neal and Klein, David, The Vanishing Common Law Judge? (March 16, 2016). University of Pennsylvania Law Review, Vol. 165 (2017), Available at SSRN:

Neal Devins

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3845 (Phone)
757-221-3261 (Fax)

David Klein (Contact Author)

Eastern Michigan University ( email )

Eastern Michigan University
Ypsilanti, MI 48197
United States

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