Who Decides?: A Critical Look at Procedural Discretion

80 Pages Posted: 8 Sep 2006

See all articles by Robert G. Bone

Robert G. Bone

University of Texas School of Law

Date Written: September 7, 2006


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 has come 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.

Keywords: procedural discretion, procedural rules, rulemaking, settlement, bounded rationality, strategic interaction

JEL Classification: K41

Suggested Citation

Bone, Robert G., Who Decides?: A Critical Look at Procedural Discretion (September 7, 2006). Boston University School of Law Working Paper No. 06-29, Available at SSRN: https://ssrn.com/abstract=928974 or http://dx.doi.org/10.2139/ssrn.928974

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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