Wednesday, June 1, 2011
David Marcus (University of Arizona) has posted When Rules are Rules: The Federal Rules of Civil Procedure and Institutions in Legal Interpretation to SSRN.
Like any legal text, the Federal Rules of Civil Procedure require interpretation. Given their day-to-day importance in the federal courts, the question of how to do so has received surprisingly little attention. Courts vacillate wildly in the methods they use when they interpret rules, and academic commentary on the question is scant. In this article, I propose a method for rule interpretation. I argue that courts should defer to rulemaker intent and purpose as they apply rules in particular cases. To do so, courts should draw upon a wide variety of sources, including rulemaking history, and reject the sort of interpretive strictures that a textualist method imposes for statutory interpretation. I illustrate how this method works with a critique of the Supreme Court’s recent decisions raising the pleading threshold a plaintiff’s complaint must meet. I show how the interpretation of Rule 8 that the Court rendered conflicts with the best reading of its text, and that the interpretation lacks any plausible basis in rulemaker intent or purpose.
I use an approach that focuses on the various governmental institutions involved in procedural rule promulgation and interpretation to assemble my methodology. In doing so, I argue that a method for the interpretation of a legal text must reflect the institutional setting from which that text emerges, and I show how an institutional approach can explain why interpretive methodologies differ from legal text to legal text. My article thus provides an example of how courts and commentators might craft interpretive methods for any number of legal texts that have thus far eluded the attention of interpretive theory.