Decay of Precedent in State Supreme Courts

Forthcoming, N.Y.U. Journal of Legislation and Public Policy

NYU Law and Economics Research Paper No. 24-07

46 Pages Posted: 19 Sep 2023

See all articles by Yun-chien Chang

Yun-chien Chang

Cornell Law School

Geoffrey P. Miller

New York University School of Law

Date Written: August 30, 2023

Abstract

This paper investigates the decay of precedents in three unique databases: citations in all published opinions by state supreme courts in 2019 (102,555 citations); citations in all published opinions by state supreme courts in 2003 (114,777 citations); and citations by all state and federal courts to state supreme court opinions issued in 2003 (259,627 citations). We find that the frequency of citation drops off by a roughly constant ratio with each passing year. The large scale of our yearly data and the time studied (1904–2019) suggests that this pattern must be the result of underlying forces not having to do with particular circumstances of time or place. We also find that cases with dissents tend to cite older cases and longer decisions tend to be cited more often and faster. Criminal law cases, as compared to constitutional law cases, tend to cite more recent precedents, while trust and estate cases tend to cite older precedents. We offer some conjectures about possible reasons for the observed differences in decay rates.

Keywords: Citations, exponential, decay, survival analysis, common ratio

JEL Classification: K40

Suggested Citation

Chang, Yun-chien and Miller, Geoffrey P., Decay of Precedent in State Supreme Courts (August 30, 2023). Forthcoming, N.Y.U. Journal of Legislation and Public Policy, NYU Law and Economics Research Paper No. 24-07, Available at SSRN: https://ssrn.com/abstract=4556252

Yun-chien Chang (Contact Author)

Cornell Law School ( email )

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

Geoffrey P. Miller

New York University School of Law ( email )

Center for the Study of Central Banks
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6329 (Phone)
212-995-4590 (Fax)

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