Judicial Mistakes in Discovery †

By Zambrano, Diego A. | Northwestern University Law Review, January 1, 2018 | Go to article overview

Judicial Mistakes in Discovery †


Zambrano, Diego A., Northwestern University Law Review


Introduction

A recent wave of scholarship argues that judges sometimes fail to comply with binding rules or precedents. Indeed, judges often ignore "unambiguous statutory command[s]" and "apply old, overturned laws instead of new laws."1 In many ways, some judges act as if they do not care about legal changes or statutory obligations. For instance, in the past few years, we have seen federal courts dodge congressional overrides in the employment context;2 seemingly monumental changes to patent injunctions come to naught;3 and state and lower federal courts fail to comply with federal decisions on arbitration, class actions, and general jurisdiction.4 In all of these areas, judges failed to apply the law either consciously or by mistake.

The stakes of this judicial noncompliance are high. Noncompliance challenges the basic principle of judicial enforcement: that courts will faithfully apply binding rules and statutes.5 Under a "perfect-agent" account, courts have perfect information and faithfully comply with legal rules, statutes, and mandates.6 The faithful judge promotes predictability, equal treatment, fairness, and uniformity across the judiciary-values essential to a functioning legal system.7 Without a faithful judge, the system can become volatile. Judicial errors and resulting noncompliant decisions may become embedded in the common law, undermining statutory and enforcement regimes and leading to distorted legal outcomes.8 Even more generally, when judicial noncompliance-intentionally or by mistake-occurs, "the evolution of doctrine is being driven by something that most observers would agree has nothing to do with the normatively correct outcomes."9 Judicial mistakes and noncompliance simply lead to suboptimal decisions.

Recent literature has highlighted the prevalence of noncompliance and suggested a variety of underlying causes, including overloaded judicial dockets;10 judges' cognitive or heuristic limitations;11 judges' limited knowledge of rules;12 judicial disagreement with legal precedent;13 and even policy experimentation or, as some have called it, "narrowing from below."14 Most of these scholars have derived their theories from two models of judging. First, the "Labor Market" model posits that judges respond to the same institutional pressures as other workers.15 Judges have superiors (appellate courts), customers (litigants), and dynamic incentives (e.g., possibility of elevation to a higher court). Under this model, noncompliance may simply be a consequence of institutional labor arrangements, laziness, and judges' search for leisure time.16 Second, the "Cognitive Costs" model of judicial behavior argues that judicial noncompliance may stem from cognitive forces like status quo bias, the power of habit, and heuristics.17 Bounded human rationality, in short, may produce predictable "mistakes" that shape judicial noncompliance with statutes, rules, and the common law.18

But unlike these two models, a subset of scholars has noted that it may be litigants who are introducing faulty law into the process.19 This hypothesis of noncompliance posits that litigant briefs may contain legal errors that judges inadvertently incorporate in their decisions-and those decisions, in turn, may be adopted by other courts as precedent. For example, Abbe Gluck suggested that in the context of federal court citations to outdated state cases, "[t]hese citation choices are likely due to errors by law clerks or lawyers or to the tendency of courts to rely on the same (sometimes outdated) set of boilerplate precedents from case to case."20 Jonathan Masur and Lisa Larrimore Ouellette wondered whether litigants' faulty briefs might be responsible for judicial misapplication of standards of review. 21 This "Litigant Hypothesis" is compatible with the Labor Market and Cognitive Costs models-all three are just related elements of a simple judicial welfare function. But the Litigant Hypothesis emphasizes the relationship between litigant labor and judicial compliance. …

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