Are Judges Tied to the Past? Evidence from Jurisdiction Cases

Authors

Shay Lavie

Abstract

Do past decisions bias judges? This Article argues that judges might be unduly affected by previously spent judicial efforts. Appellate courts, for instance, are more reluctant to reverse a case the larger the resources the trial judge invested.

To provide empirical evidence for this proposition, this Article examines reversal rates of jurisdictional questions. As jurisdiction is independent of the merits, its resolution should not be affected by subsequent judicial efforts on the merits. Nonetheless, this study finds that the more resources that are invested on the merits of the case, the less likely appellate courts are to reverse the underlying jurisdiction determination. This correlation is statistically significant and non-trivial in size.

This Article then discusses the normative implications of this phenomenon. The major one is reforming the final judgment rule. A broader right to interlocutory appeals would moderate appellate judges’ tendency to rely on past proceedings and improve decision-making.

Recommended Citation

Lavie, Shay (2014) "Are Judges Tied to the Past? Evidence from Jurisdiction Cases," Hofstra Law Review: Vol. 43: Iss. 2, Article 2.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol43/iss2/2