Gains, Losses, and Judges: Framing and the Judiciary

63 Pages Posted: 18 Nov 2019

Date Written: June 1, 2018


Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aversion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist. This Article fills that gap. We present eight studies with over one thousand judges as research participants that demonstrate that all four of these anomalous features of framing influence how sitting judges evaluate legal cases.

Keywords: law and psychology, judging, loss aversion, reference-dependent choice, status quo bias, endowment effect, risk seeking in the face of losses, framing effects, empirical

Suggested Citation

Rachlinski, Jeffrey John and Wistrich, Andrew J., Gains, Losses, and Judges: Framing and the Judiciary (June 1, 2018). Notre Dame Law Review, Vol. 94, No. 2, 2018, Cornell Legal Studies Research Paper No. 19-43, Available at SSRN:

Jeffrey John Rachlinski (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-5878 (Phone)
607-255-7193 (Fax)

Andrew J. Wistrich

California Central District Court ( email )

Los Angeles, CA 90012
United States

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