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Judicial decisionmaking rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Despite the central role of such rules in judicial decisionmaking, we lack a good account of how they are created, revised, and enforced. There is something paradoxical and troubling about the notion that the rules of the game are determined by the players as they play the game according to those rules. Because weight-of-authority rules are largely informal and almost entirely unwritten, we don’t even have a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decisionmaking rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes.

I surface this evolving set of rules as a complex body of judicial norms that extends well beyond the principle of stare decisis. Using an original data set, I examine norms and practices in the Tenth Circuit as a case study. I reveal norms of authority that are largely invisible to all—including parties appearing before the courts—and illustrate some of the consequences of a decentralized informal rule-making system. These norms govern the construction of every judicial decision, but they are not the product of design. As a whole, this body of norms—a foundational set of unwritten insiders’ rules created without deliberation by an elite set of judges—is both problematic and surprisingly unexamined. This article exposes the problem and considers possible avenues of reform, advocating for transparency as a critical first step in addressing the problems with authority.

Publication Citation

St. John's Law Review , Vol. 97, No. 113, 2023.