Professor Bone Publishes Article on Procedural Discretion

The Cardozo Law Review has recently published an article by Prof. Robert Bone entitled Who Decides? A Critical Look at Procedural Discretion, 28 Cardozo L. Rev. 1961 (2007). Here is an excerpt from the Introduction:

How much discretion should a trial judge have to design procedures for a given lawsuit? This is a difficult and important question for civil proceduralists today. Federal district judges exercise extremely broad and relatively unchecked discretion over many of the details of litigation. They have extensive power to manage cases, and broad, essentially unreviewable power to promote settlements. Even when a procedural rule includes decisional standards, those standards often rely on expansive judicial discretion to make critical case-specific determinations. Indeed, it is only a slight exaggeration to say that federal procedure, especially at the pretrial stage, is largely the trial judge's creation, subject to minimal appellate review.

Many federal judges and procedure scholars favor maintaining and even expanding broad case-specific discretion, arguing that trial judges have the necessary expertise and experience to tailor procedures to the needs of particular cases. More skeptical scholars worry about the high costs and the legitimacy and accountability problems that broad and relatively unchecked discretion can generate. The debate has even reached a global level.

In this Article, I side with the skeptics, but for reasons that have not been fully explored before. Most critics focus on risk of abuse and give short shrift to competency concerns. This is a mistake. The pervasive assumption that expert trial judges can do a good job of tailoring procedures to individual cases is empirically unsupported and at best highly questionable. In fact, judges face serious problems fashioning case-specific procedures to work well in the highly strategic environment of litigation, and these competency problems deserve much more serious attention than they have received to date.