Monday, August 1, 2011
Lumen Mulligan (University of Kansas) and Glen Staszewski (Michigan State) have just posted The Supreme Court’s Regulation of Civil Procedure: The Lessons of Administrative Law to SSRN.
In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present an analogy-to-administrative-law justification for favoring rulemakings over adjudications. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue: (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron-step-two-like ambiguity, or (c) seeks a legislative-rule-like resolution. Only when traditional tools of statutory construction – text, history, and purpose – will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules, but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking.