Abstract
We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.
Highlights
We contend that the Federal Rules of Civil Procedure (Rules) should be interpreted in a distinctive fashion, despite the federal courts’ proclivity to interpret the Rules as if they were statutes
The Court chose to exercise its power in adjudication to render an “interpretive” about face. These examples show that interpretive stances—whether involving textualism, purposivism, adherence to policy set by the Advisory Committee, or a dynamic approach to setting procedural policy—drive outcomes in Rules cases and profoundly impact the conduct of federal litigation generally
Again in line with a Rules-as-statutes approach, the plurality concluded that judicial policy preferences—such as the Erie doctrine’s policy to avoid creating incentives to forum shop as between the state and federal courts—must give way to the policy set in the Rules.[54]
Summary
We contend that the Federal Rules of Civil Procedure (Rules) should be interpreted in a distinctive fashion, despite the federal courts’ proclivity to interpret the Rules as if they were statutes. The Court chose to exercise its power in adjudication to render an “interpretive” about face These examples show that interpretive stances—whether involving textualism, purposivism, adherence to policy set by the Advisory Committee, or a dynamic approach to setting procedural policy—drive outcomes in Rules cases and profoundly impact the conduct of federal litigation generally. Much rides on these interpretive-stance driven decisions: should courts be free to consider the credibility of video evidence in a summary judgment posture;[33] may workers form a nation-wide class to sue their employer;[34] may defendants be compelled to undergo medical examinations over their protest?35 And we could go on and on. After addressing potential objections to our view, we conclude that our model best respects rule-of-law norms and the principle of institutional settlement and makes the fullest use of the various institutional advantages relevant in Rules cases
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