Monday, August 22, 2011
I have posted my article The Shadow Rules of Joinder to SSRN.
The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same “transaction or occurrence” or a “common question of law or fact.” Both phrases have proved notoriously tricky in application. Commentators from the academy and the judiciary have attributed these difficulties to the context-specific and discretionary nature of the rules.
This Article challenges that wisdom by suggesting that the doctrinal confusion can be attributed to deeper theoretical divisions in the judiciary, particularly with regard to the role of the ontological categories of “fact” and “law.” These theoretical divisions have led lower court judges to craft shadow rules of joinder. “Redescription” is the rule by which judges utilize a perceived law/fact distinction to characterize a set of facts as falling inside or outside a definition of commonality. “Implied predominance” is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement.
After demonstrating the instability of the shadow rules, this Article suggests that the rules drafters move away from a commonalities approach to joinder and toward a system in which each joinder directive contains criteria that stress the unique purpose of each joinder device and that account for the different managerial challenges that judges face in granting or denying joinder under each device. Such rules would not remove the delicate context-specific determinations from judges, but would result in greater transparency and consistency of joinder decisions.