Saturday, November 23, 2013
Scott Dodson (UC - Hastings) has posted Party Control of Judicial Authority to SSRN.
American civil litigation operates under a presumption of party control. Parties get to frame the lawsuit structure, factual predicates, and legal arguments, while the court intervenes to decide any motions the parties choose to make. Dedication to the principle of party control has expanded, spawning ubiquitous ex ante waivers and agreements that purport to bind the court, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind the trend is that parties do in fact exercise significant control over judicial authority. This Article challenges that assumption by introducing a theory of party/judge independence. Under this theory, parties have no control over judicial authority except where specifically granted such control by law. This theory of party/judge independence spawns a correlative theory of party/law independence, which posits that parties cannot change the law governing the court. Together, these theories of party/judge and party/law independence mean that the law — not party agreement — binds the court; and even when parties can lawfully make litigation choices, those choices generally do not bind the court. Independence suggests that the trend toward litigation customization is on shakier footing than previously acknowledged, while reorienting some key elements of the normative debate surrounding customization. Independence also exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. Together, the theories of party/judge and party/law independence shift the way the federal litigation system views the relationship among parties, courts, and the law.