Cognitive Bias, the 'Band of Experts,' and the Anti-Litigation Narrative

38 Pages Posted: 19 Nov 2015 Last revised: 17 Aug 2016

Elizabeth G. Thornburg

Southern Methodist University - Dedman School of Law

Date Written: April 15, 2015

Abstract

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable cognitive biases take this blend of politics, elite and often defense-side experience, and corporate manipulation of public opinion and blind the Rules Committee members to the possibilities of solutions that expand rather than contract information sharing. This article considers these phenomena, and recommends more heterogeneous committee membership, the use of deliberative processes that are more likely to overcome flawed heuristics, and greater reliance on non-opinion-poll data in the rulemaking process.

Keywords: discovery, federal rules of civil procedure, amendment, cognitive bias, Supreme Court, civil procedure

JEL Classification: K4, K41

Suggested Citation

Thornburg, Elizabeth G., Cognitive Bias, the 'Band of Experts,' and the Anti-Litigation Narrative (April 15, 2015). 65 DePaul Law Review 755 (2016); SMU Dedman School of Law Legal Studies Research Paper No. 266. Available at SSRN: https://ssrn.com/abstract=2692348

Elizabeth G. Thornburg (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 0116
Dallas, TX 75275
United States
214-768-2613 (Phone)
214-768-3142 (Fax)

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