Governments can force courts to uphold illegal policies by making them intentionally extreme and disruptive.
March 31, 2026
Original Paper
Reversal Costs and Executive Overreach
SSRN · 6379182
The Takeaway
By implementing a policy 'overreachingly' and aggressively, executives create high 'reversal costs'—situations where a court striking down the law would cause too much chaos or economic damage. The research shows courts are more likely to uphold a radical policy to avoid disruption than they are to uphold a mild one.
From the abstract
Executives may implement legally contestable policies aggressively before courts reach a final legality determination, creating reliance and other sunk effects that make reversal costly. We study a complete-information sequential game in which an executive chooses policy aggressiveness and a court then decides whether to uphold the policy or strike it. If reversal costs increase sufficiently convexly in aggressiveness, the court strikes mild policies but upholds sufficiently aggressive ones to a