Law Commons^™

Stare Decisis Is Cognitive Error, Goutam U. Jois

Goutam U Jois

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 …