Judges Should Avoid Herd Mentality and a Default to Precedent

Judges know a lot about consensus. Consistency is an important attribute of a legal system. That’s why precedent from a higher court must be followed by a lower court.

But sometimes judges go too far, treating like binding precedent anything other judges have said. They do this even when the other judge is their equal, and even when the other judge’s reasoning is weak or even non-existent.

I fear this approach is something like the instinct of the great American buffalo—move in a herd. Form a circle.

But a herd mentality is— mentally— not enough. It’s unthinking conformity. Judges should guard against it. We should prefer thinking judges over merely conforming judges.

Independent Thinkers Wanted

Take a typical case. Many courts have had to consider whether Covid-19 physically damaged property for insurance purposes.

A few courts reflexively said that a building closed due to Covid-19 suffered no “tangible deprivation or destruction” despite the fact the party may have been deprived of the property’s use, and even though mold, asbestos, water, graffiti, and other damage is often deemed physical damage without so much as a brick falling out of place.

The first courts to rule on the subject simply left these distinctions unaddressed, such as the Eleventh Circuit Court of Appeals ruling in Gilreath Family & Cosmetic Dentistry, Inc. v. Cincinnati Ins. Co. Other courts instinctively joined in on the same ground, citing the number of decisions rather than their reasoning.

When a lone court dissented, it was mocked as rejected and criticized as an outlier without explaining why it deserved rejection—as though being alone was equal to being wrong. Too many courts point to the “majority view” without discussing why it is right—such as in the Western District of Kentucky decision in Parker v. Cincinnati Ins. Co.

When judges follow or reject nonbinding precedent, they should say why. The mere existence of a ruling on paper may be a reason to address it, but it isn’t a reason to follow it.

Following the majority rule is no excuse for a judge explaining why they chose the majority over the minority rule. Yet lawyers in arguments and judges in decisions frequently treat this “consensus” as having independent significance—an invitation to herd and exclude outliers.

Role of Factual Outcome and Precedent

Some judges take this mistake further. Lawyers love to cite the outcome of factually similar cases as though the outcome itself is a kind of precedent.

But a factual outcome is even less persuasive alone than a view of what the law is. It’s the reasoning that matters, not the outcome. If one owner of a spaniel defeats a dog bite claim, it doesn’t mean all spaniels should defeat all dog bite claims.

Binding precedent is vital to our legal system. It creates settled expectations that help us know our rights. But judges who rely on other judges’ nonbinding rulings without explaining why give legal proceedings the appearance of authority while lacking sufficient substance.

Usually, a lawsuit is about rights related to a basic rule set by binding precedent, legislation, or contract. Lawyers and judges can start their work by recognizing the value at stake in a lawsuit and explaining how they apply that value to the facts in front of them.

Thus, the Covid-19 debate under an insurance contract might be about the essence of “physical” damage under a contract. In the dog bite case, it should be about the law applied to this spaniel and no other. Judges who skip this and point to unexplained results on other facts in front of other judges leave out vital explanations. The real reason for the ruling eludes us.

Lawyers are more credible when they say why a rule should be followed than they are when they say it has been followed by most judges. Judges should remember that our trust in them increases the more we can understand what they are doing and why.

Judges should be heard, not herded.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Thomas G. Moukawsher is a Connecticut complex litigation judge and a former co-chair of the ABA Committee on Employee Benefits. His book is forthcoming from Brandeis University Press: The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.