Notre Dame Law Review Volume 94 | Issue 2 Article 2 1-2019 Gains, Losses, and Judges: Framing and the Judiciary Jeffrey J. Rachlinski Cornell Law School Andrew J. Wistrich United States District Court for the Central District of California Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Courts Commons, and the Judges Commons Recommended Citation 94 Notre Dame L. Rev. 521 (2019). This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact
[email protected]. \\jciprod01\productn\N\NDL\94-2\NDL202.txt unknown Seq: 1 27-DEC-18 9:19 GAINS, LOSSES, AND JUDGES: FRAMING AND THE JUDICIARY Jeffrey J. Rachlinski* & Andrew J. Wistrich** Losses hurt more than foregone gains—an asymmetry that psychologists call “loss aver- sion.” Losses cause more regret than foregone gains, and people struggle harder to avoid losses than to obtain equivalent gains. Loss aversion produces a variety of anomalous behaviors: people’s preferences depend upon the initial reference point (reference-dependent choice); people are overly focused on maintaining the status quo (status quo bias); people attach more value to goods they own than to identical goods that they do not (endowment effect); and people take excessive risks to avoid sure losses (risk seeking in the face of losses). These phenomena are so pervasive that legal scholars have assumed that they influence the development of law. Although numerous studies reveal that framing influences how ordinary people think about their rights, a clear demonstration that judges decide cases differently when the underlying facts present gains as opposed to losses does not exist.