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Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts

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  • Daughety, Andrew F
  • Reinganum, Jennifer F

Abstract

We model appeals courts as Bayesian decision makers with private information about a supreme court's interpretation of the law; each court also observes the previous decisions of other appeals courts in similar cases. Such "persuasive influence" can cause "herding" behavior by later appeals courts as decisions progressively rely more on previous decisions and less on a court's private information. We provide an example drawn from a recent United States Supreme Court decision finding unconstitutional a basic provision of a law previously found constitutional by six circuit courts. Herding on the wrong decision may remain uncorrected, since review of harmonious decisions is rare. Copyright 1999 by Oxford University Press.

Suggested Citation

  • Daughety, Andrew F & Reinganum, Jennifer F, 1999. "Stampede to Judgment: Persuasive Influence and Herding Behavior by Courts," American Law and Economics Review, Oxford University Press, vol. 1(1-2), pages 158-189, Fall.
  • Handle: RePEc:oup:amlawe:v:1:y:1999:i:1-2:p:158-89
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    Citations

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    Cited by:

    1. Harnay, Sophie & Marciano, Alain, 2003. "Judicial conformity versus dissidence: an economic analysis of judicial precedent," International Review of Law and Economics, Elsevier, vol. 23(4), pages 405-420, December.
    2. Gilat Levy, 2005. "Careerist Judges," RAND Journal of Economics, The RAND Corporation, vol. 36(2), pages 275-297, Summer.
    3. Fon, Vincy & Parisi, Francesco, 2006. "Judicial precedents in civil law systems: A dynamic analysis," International Review of Law and Economics, Elsevier, vol. 26(4), pages 519-535, December.
    4. Flavio Menezes & Magnus Söderberg & Miguel Santolino, 2012. "Regulatory behaviour under threat of court reversal," Discussion Papers Series 472, School of Economics, University of Queensland, Australia.
    5. W. Viscusi & Owen Phillips & Stephan Kroll, 2011. "Risky investment decisions: How are individuals influenced by their groups?," Journal of Risk and Uncertainty, Springer, vol. 43(2), pages 81-106, October.
    6. Andrew F. Daughety & Jennifer F. Reinganum, 2002. "Speaking Up: A Model of Judicial Dissent and Discretionary Review," Vanderbilt University Department of Economics Working Papers 0209, Vanderbilt University Department of Economics, revised Jan 2003.
    7. Leonardo Felli & Alessandro Riboni & Luca Anderlini, 2007. "Statute Law or Case Law?," 2007 Meeting Papers 952, Society for Economic Dynamics.
    8. Kamphorst, Jurjen J.A. & van Velthoven, Ben C.J., 2009. "The introduction of an appeals court in Dutch tax litigation," International Review of Law and Economics, Elsevier, vol. 29(1), pages 13-24, March.
    9. Marciano, Alain & Khalil, Elias L., 2012. "Optimization, path dependence and the law: Can judges promote efficiency?," International Review of Law and Economics, Elsevier, vol. 32(1), pages 72-82.
    10. Luca Anderlini & Leonardo Felli & Alessandro Riboni, 2014. "Why Stare Decisis?," Review of Economic Dynamics, Elsevier for the Society for Economic Dynamics, vol. 17(4), pages 726-738, October.
    11. repec:kap:ejlwec:v:43:y:2017:i:3:d:10.1007_s10657-015-9512-1 is not listed on IDEAS
    12. Osório-Costa, António M., 2015. "Argumentation Quantity and Quality: A Litigation Success Function," MPRA Paper 63275, University Library of Munich, Germany.
    13. Fernando Gomez & Juan Ganuza, 2012. "How to build European private law: an economic analysis of the lawmaking and harmonization dimensions in European private law," European Journal of Law and Economics, Springer, vol. 33(3), pages 481-503, June.
    14. Ying Chen & Hulya Eraslan, 2018. "Learning While Setting Precedents," Koç University-TUSIAD Economic Research Forum Working Papers 1810, Koc University-TUSIAD Economic Research Forum.
    15. Bertrand Chopard & Edwige Marion & Ludivine Roussey, 2014. "Does the Appeals Process Lower the Occurrence of Legal Errors?," EconomiX Working Papers 2014-43, University of Paris Nanterre, EconomiX.

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