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![handle is hein.journals/brklr75 and id is 65 raw text is: Stare Decisis Is Cognitive Error
Goutam U. Joist
[Aifter [courts] have proceeded a while they get their own set of
precedents, and precedents save the intolerable labor of thought,
and they fall into grooves, just as judges do. When they get into
grooves, then God save you to get them out of the grooves.
-Learned Hand'
I. INTRODUCTION
For hundreds of years, the practice of stare decisis-a
court's adherence to prior decisions in similar cases-has
guided the common law. However, recent behavioral evidence
suggests that stare decisis, far from enacting society's true
preferences with regard to law and policy, may reflect, and
exacerbate, our cognitive biases.
The data show that humans are subconsciously primed
(among other things) to prefer the status quo, to overvalue
existing defaults, to follow others' decisions, and to stick to the
well-worn path. We have strong motives to justify existing
legal, political, and social systems; to come up with simple
explanations for observed phenomena; and to construct
coherent narratives for the world around us. Taken together,
these and other characteristics suggest that we value precedent
not because it is desirable but merely because it exists. Three
case studies-analyzing federal district court cases, U.S.
Supreme Court cases, and development of American policy on
torture-suggest that the theory of stare decisis as a heuristic
1 J.D., 2007, Harvard; A.B., 2003, M.P.P., 2004, Georgetown.
gjois@post.harvard.edu. I have benefited from feedback at various stages of this project
from Anuj Desai, Jon Hanson, Frederick Schauer, Cass Sunstein, Adrian Vermeule,
and participants in the Student Association for Law and Mind Sciences speaker series
at Harvard Law School. Three excellent research assistants have also been invaluable
to the completion of this Article, Tina Gonzalez, Rachel Furman, and Debbie Chung. As
always, I am grateful to my family for their love and support: my parents, Umesh and
Indira; my sisters, Malasa and Mallika; and my wife, Elizabeth. Any errors the reader
perceives may be attributed to cognitive bias.
1 LEARNED HAND, THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF
LEARNED HAND 241 (Irving Dilliard ed., 1963) (1952).](ViewImageLocal?handle=hein.journals/brklr75&div=5&collection=&method=preview&ext=.png&size=3)