Who Decides?: A Critical Look at Procedural Discretion


Federal civil procedure today relies extensively on trial judge discretion to manage litigation, promote settlements, and otherwise tailor process to individual cases. Even those rules with decisional standards leave trial judges considerable interpretive freedom to make case-specific determinations. This Article criticizes these choices and recommends stricter rules. Many judges and procedure scholars applaud the discretionary approach, and the Advisory Committee seems content to draft vague rules that implement it. The assumption seems to be that trial judges have the expertise and experience to do a good job of tailoring procedures to the needs of particular cases. The assumption is wrong, and this Article explains why.

After surveying how discretion operates in federal procedure and explaining how it came to dominate, the Article turns to developing the argument against case-specific discretion. It begins by identifying the primary purpose of procedure and explains why achieving quality settlements is as important as achieving quality judgments. The settlement quality and judgment quality objectives conflict, however, and designing procedures to balance them optimally is a difficult matter. The Article then identifies three serious problems that frustrate any effort by trial judges to strike an optimal balance in individual cases: bounded rationality limits, information access obstacles, and strategic interaction effects. These problems are particularly acute in procedure because of the highly strategic nature of litigation and the tightly integrated structure of a procedural system. The Article explains why the three problems are not as serious for committee-based rulemakers as for trial judges and why the cost-benefit balance therefore supports adopting stricter rules. The Article concludes by discussing four ways to limit discretion and illustrating each with concrete reform proposals in the areas of discovery, settlement promotion, and class action law.


Courts | Dispute Resolution and Arbitration | Economics | Litigation

Date of this Version

August 2006