Judicial Fact Discretion

Nicola Gennaioli () and Andrei Shleifer

No 12679, NBER Working Papers from National Bureau of Economic Research, Inc

Abstract: Does it matter for the outcome of a trial who the judge is? Legal practitioners typically believe that the answer is yes, yet legal scholarship sees trial judges as predictably enforcing established law. Following Frank (1951), we suggest here that trial judges exercise considerable discretion in finding facts, which explains the practitioners’ perspective and other aspects of trials. We identify two motivations for the exercise of such discretion: judicial policy preferences and judges’ aversion to reversal on appeal when the law is unsettled. In the latter case, judges exercising fact discretion find the facts that fit the settled precedents, even when they have no policy preferences. In a standard model of a tort, judicial fact discretion leads to setting of damages unpredictable from true facts of the case but predictable from knowledge of judicial preferences, it distorts the number and severity of accidents, and generates welfare losses. It also raises the incidence of litigation relative to settlement, and encourages litigants to take extreme positions in court, especially in new and complex disputes where the law is unsettled.

JEL-codes: K13 K4 K41 (search for similar items in EconPapers)
New Economics Papers: this item is included in nep-law
Date: 2006-11
Note: CF LE
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Journal Article: Judicial Fact Discretion (2008)
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