We examine a coordination dilemma among judges who do not have formal legal authority over each other. The coordination dilemma arises because judges value both ‘correct’ law – law in accordance with jurisprudential principles and responsive to changing social needs – and ‘consistent’ law – law uniformly implemented by all judges. These twin goals are often aligned, but they might come into tension when the correct legal response to changing societal needs is uncertain. The resulting strategic environment forces judges to estimate each other’s reaction to potential legal innovations. Due to this coordination concern, judges may weigh public information more than its informational value merits. Anticipating this overreaction to public information, prominent judges may refrain from offering innovative opinions even though the conveyed information is valuable for evaluating cases. Others may offer highly influential opinions. Remarkably, the propensity to abstain from innovation can be strongest in judges who care most about developing correct law. We provide concrete examples from contract, property, and tort law that support our theoretical mechanisms.
Shadmehr, Mehdi and Cameron, Charles M and Shahshahani, Sepehr, Coordination and Innovation in Judiciaries: Correct Law vs Consistent Law (March 25, 2018).