The Devil We Know: Legal Precedent and the Preservation of Injustice

Abstract

A hallmark feature of the common law tradition is reliance on past decisions, or precedent, to resolve legal ambiguity and ensure consistency across similar cases. Yet the intent of precedent—to safeguard equity—may be undermined by nonconscious psychological processes. The behavioral and brain sciences show that decision-making can be contaminated by a human proclivity (endemic among both judges and laypeople) to justify and legitimize extant societal arrangements. Examples from case law and empirical legal studies illustrate how precedent may impede social justice in ways that are predictable from psychological theory. Highlighted in particular are barriers to justice disproportionately encountered by members of historically disadvantaged groups. The article closes with a discussion of opportunities for institutional reform and a call for continued scholarship examining the prevalence and impact of status-quo-maintaining biases in the legal system.