February 27, 2018

Judicial Mistakes in Discovery


A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.


Diego A. Zambrano, Harry A. Bigelow Teaching Fellow and Lecturer in Law, University of Chicago Law School.

Copyright 2018 by Diego A. Zambrano

Cite as: Diego A. Zambrano, Judicial Mistakes in Discovery, 112 Nw. U. L. Rev. Online 217 (2018), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1258&context=nulr_online.