Procedural Flexibility in Three Dimensions

Abstract

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or even (sometimes) jurisdiction. Whether or not the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure. This paper is the first to document the full spectrum of procedural flexibility—the varied and sometimes surprising range of ways in which judges and parties can modify procedure in their cases. We show that procedure flexibility spans a broad spectrum from rigid inflexibility, to contracts to modify procedure, to unilateral control over procedure, and beyond, to a frontier of innovations—buying and selling of procedures between parties in different cases, and markets or auctions for everything from depositions to jury trials. Some of these possibilities seem radical, but we also show that, contrary to conventional wisdom, current civil practice permits similarly radical flexing of procedure. As a normative matter, we argue that even radical forms of flexibility (like markets in procedure) cannot be ruled out based on familiar normative criteria such as facilitating democratic participation, efficient dispute resolution, norm creation, or distributive justice. To the contrary, such forms of procedural flexibility may offer unexpected avenues for addressing inequities of the current status quo.