Judges Should Avoid Herd Mentality and a Default to Precedent | Bloomberg Law

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…Read More


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

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