Cases, Judges, States, or Politics ? What is it that Changes the Law? A Study of States? Supreme Courts Decisions to Accept or Reject the Loss of Chance Doctrine

Abstract

Law changing decisions are the most important decisions courts make. These decisions shape the law and therefore they deserve special attention. The writers of this paper analyze a unique dataset consisting of forty four decisions, all dealing with the possibility of changing the law by accepting the Loss of Chance doctrine. This unique dataset enables the writers to analyze the factors that influence courts in deciding to change the law. This article suggests that the decision to change the law is influenced by much more than the policy considerations that courts usually relate to in their decision to change the law. Thus, it seems that the decision to change the law is affected by the specific facts of the case at hand – the type of the defendant’s negligence; the underlying medical situation; and the parties’ identities affect the willingness of the court to change the law. The results show that judges’ gender affects their decision to change the law and their tendency to be in the minority; Judges’ partisan affiliation affects none; while judges’ seniority affects only their tendency to be in the minority. Courts’ tendency to change the law is also influenced by the length of the judges’ term and the court’s caseload. It seems that judges with longer terms and courts with heavier caseloads tend to be more prone to change the law. Changes in the law tend to appear in geographical clusters suggesting that at least in some areas of the law, state courts are affected by the neighboring states rulings, more than by the rulings of other, more distant states. Once a court decides to change the law, it changes the way the decision will be written: chief judges take a more active role in the writing of law changing decisions; there are fewer dissenting opinions; the decisions are longer; and they focus on the legal issues more than other decisions.