Judicial Mistakes in Discovery
Posted: 6 Apr 2017 Last revised: 6 Sep 2017
Date Written: April 5, 2017
A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Article calls the “Litigant Hypothesis.” The Article presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Article finds that the strongest predictor of noncompliance in a dataset of discovery cases is indeed faulty briefs. This study presents the first empirical evidence that brief compliance is correlated with judicial compliance, and concludes that the Litigant Hypothesis of noncompliance may have explanatory value.
Keywords: Judicial Behavior, Discovery, Empirical Legal Studies, Lawyers, Civil Procedure
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