University of Cincinnati Law Review


This Article reports on a controlled empirical examination of what happens when judges exercise their broad discretion to resolve nondispositive pretrial disputes. Experimental studies of judicial decision-making are rare, and experimental studies of pretrial dispute resolution by predominantly state court judges are non-existent. Data was collected from the presentation of nine simulated disputes about discovery and litigation management in 166 chambers conferences before 61 volunteer judges.

The study results indicate that judges faced with the same facts usually fracture in deciding the dispute. This variation is not attributable to groups of judges deciding in a consistent way for some parties. Very few judges showed marked tendencies to defer decisions or rule for one type of party. Nor did judicial characteristics, such as gender, experience or measures of ideology, explain the simulation results. These results are surprisingly consistent with another experimental study on district court judicial decision-making in criminal sentencing, which found a similar pattern of fractured outcomes.

The study results also challenge the assumption that the addition of factors or presumptions in procedural rules produces more predictable and consistent decision-making, instead finding that the disputes guided by the vaguest of standards created more agreement among judges than when the relevant rule contained a multiple factor test or even a presumptive outcome. Given the varying results when judges exercise their discretion to determine disputes, changes to the civil procedure rules to limit judicial discretion advocated by some scholars would require an upheaval in current judicial decision-making practice.