May 10, 2010
Jordan on Local Rules and Trans-Territorial Procedure
Samuel Jordan (St. Louis University) has posted Local Rules and the Limits of Trans-Territorial Procedure to SSRN.
Local rules have been unfairly cast as procedural villains. Their qualifications for the role are purportedly numerous, but chief among them is that they violate a fundamental principle embedded in our post-1938 procedural regime: that the procedural rules applied in a federal case should not be sensitive to location. It must of course be conceded that local rules do produce territorial variations in procedure. But in practice, the principle of trans-territoriality is aspirational, and is undermined by an array of factors – ranging from competing interpretations of written rules to the supplementation of those rules through exercises of inherent power – that inevitably contribute to location-based variations in the actual procedural requirements imposed in federal cases. Properly situated, local rules are not an outlier, but are merely one form of territorial variation among many. To assess local rules, therefore, we should not ask whether they produce territorial variation, but instead whether a procedural regime that permits them produces a better mix of territorial variation than one that does not. When viewed this way, local rules emerge as attractive – if not quite heroic – because they are transparent, they reflect participation by non-judicial actors, and they promote intra-district equality in the treatment of cases.