Consuming the Hangover: Legal Change and Litigant Choice

57 Pages Posted: 26 Feb 2023

See all articles by Matthew Reid Krell

Matthew Reid Krell

Washburn University - Washburn University School of Law

Date Written: February 20, 2023


Jurisprudential-regimes theory argued that scholars could detect effects of legal doctrine on Supreme Court decision-making by analyzing major changes in legal doctrine. Critics of JRT have argued that it constitutes a simple statistical artifact, and that appropriate analyses find no such results. I investigate whether changes in the legal regime may affect judicial decision-making by changing the population of cases available for the courts to rule on. I find evidence that changes in the legal regime has contingent effects on decision-making. A decision that changed eligibility for claiming had negative effects on dispute generation and settlement payouts. A decision that made proof of claims easier for plaintiffs increased litigant selection but decreased payouts, suggesting that plaintiffs may have reacted overconfidently. And a decision that was believed to make plaintiffs’ proof easier but was widely disregarded increased payouts in all cases, but had an initial positive effect on settlements that later shifted, suggesting that litigants saw the way lower courts were treating the decision and shifted away from their pro-plaintiff positioning. Taken together, these results offer evidence that asking if law constrains judicial decision-making is incomplete. Litigants change their behavior in response to changes in the law, which affects the sample of cases that judges get to decide.

Keywords: litigation process, litigant behavior, judicial decision-making, jurisprudential regimes theory, judicial politics, employment law, EEOC, ADA, ADEA, Title VII

JEL Classification: J71, J78, K41, H83

Suggested Citation

Krell, Matthew Reid, Consuming the Hangover: Legal Change and Litigant Choice (February 20, 2023). Available at SSRN: or

Matthew Reid Krell (Contact Author)

Washburn University - Washburn University School of Law ( email )

1700 SW College Ave.
Topeka, KS 66621
United States

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