Social Constraint or Implicit Collusion?: Toward a Game Theoretic Analysis of Stare Decisis
O'Connor, Erin O'Hara, 1965-
This Article suggests an alternative, internal rationale for why judges follow precedents. The Article posits that stare decisis has evolved as a result of judges' preference for the doctrine. The Article begins with an assumption that judges are primarily motivated by a desire to impose their normative views, beliefs, and mores on the society in which they live. Using simple tools from game theory, it shows that where judges' normative views differ, an agreement to follow each other's precedents eliminates nonproductive competition that would result if judges were unconstrained in their efforts to have their own, rather than other judges', normative views define the legal consequences of individual behavior. As a result, judges are better off under a rule of stare decisis. This Article also considers what a stare decisis agreement might entail and how tacit collusion by judges might survive over time. Although the model presented is abstract and somewhat unrealistic (because it peels away much of the detail of judicial decision-making), this Article attempts to expose a nugget of truth about the evolution and persistence of stare decisis. Finally, the informal model predicts some specific phenomena found in our legal systems and is, to some extent, empirically testable.