Judging & Nudging

Abstract

Judges play two distinct roles in the life a civil case: judging and nudging. Judging occurs when judges decide issues of fact and law, subject to legal rules or standards and (usually) rights of appeal. Nudging occurs when judges manage cases with scheduling orders, conferences, and party communications as the case progresses from complaint filing to resolution. A core assumption of the Federal Rules of Civil Procedure (FRCP) is that more nudging facilitates better judging and faster resolution, or even helps parties to settle the matter themselves. Rule 16 forms the backbone of case management by articulating how nudges work and why they matter (expediting and quality improvement). The assumption that nudging promotes quicker outcomes, while partially critiqued by academics, remains empirically unexamined. 

Using the Systematic Content Analysis of Litigation Events Open Knowledge Network (SCALES or SCALES-OKN) repository of millions of docket entries in civil cases filed in all ninety-four U.S. District Courts, we present novel empirical results on the relationship between nudging and case speed and outcomes. Shockingly, from the perspective of the FRCP at least, the foundational assumptions underpinning Rule 16 do not find clear support in the data. More nudging-Rule 16 events like pretrial and scheduling conferences-is not associated with faster resolution times. 

The Article provides three possible explanations for the results. Building on the existing literature on managerial judging, we explore the possibility that nudges do not matter, are too discretionary to be effectively observed in part due to selection effects, or are dependent on other case features. Each story, if true, suggests its own set of reforms, including minimizing nudges, standardizing nudges, or further empirical work.