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Scholarship highlight: Who should resolve issues relating to the Federal Rules of Civil Procedure?

Lumen N. Mulligan is Professor of Law and Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas School of Law.  Glen Staszewski is the A.J. Thomas Faculty Scholar, Associate Dean for Research, and Professor of Law at Michigan State University College of Law.  The full version of our article, The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law, 59 UCLA L. Rev. 1188 (2012), is available on SSRN.

On November 5, in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, the Supreme Court will hear oral arguments in a case involving the meaning of Federal Rule of Civil Procedure 23(b)(3).*  The parties and various amici argue, to a large degree, that the Court should adopt their proposed readings of the class-certification requirement in light of contested background empirical facts and policy imperatives.  Amgen is not unique in this regard; indeed, Federal Rules questions often present the Court with broad empirical and policy claims.  Just like most administrative agencies – or regulators, if you will – the Court may set civil procedure policy through case-by-case adjudication, as it did in Bell Atlantic Corp. v. Twombly  and Ashcroft v. Iqbal, or by promulgating generally applicable rules through a notice-and-comment rulemaking procedure, as it did when Rule 11 was amended to include safe-harbor and firm-liability provisions.  Although the Court faces this choice between proceeding by rulemaking or adjudication in Amgen, and in every case that addresses a civil procedure issue, it has yet to devise a coherent framework for making this decision.  Drawing lessons from administrative law, we argue in our Article that, unless it can resolve the case by relying exclusively on the traditional tools of statutory interpretation, the Court should route most issues relating to the Federal Rules of Civil Procedure through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications. 

Administrative agencies regularly face the same adjudication-versus-rulemaking decision confronted by the Court in the civil procedure context.   Since the New Deal, Congress has routinely delegated broad lawmaking authority to administrative agencies charged with implementing a range of federal programs, just as it has delegated procedural rulemaking authority to the Court.  Although statutes occasionally specify that an agency must use rulemaking or adjudication to make certain policy decisions, most statutes delegate authority to agencies both to promulgate orders and rules and leave it up to the agency to decide whether to make policy pursuant to adjudication or rulemaking.  This decision is known in administrative law as an agency’s “choice of policymaking form.”  Given the ubiquity of these determinations, jurists and scholars have recognized that an agency’s choice of policymaking form is a momentous decision and have developed a rich body of knowledge as to which form is superior for addressing particular types of questions.

We believe administrative law has much to offer the Court when deciding which policymaking form it should choose in making civil procedure decisions.  We contend that because the Court, like an agency, may set procedural policy using either form, it is apt to analogize the Court to an administrative agency in this area.   Given this congruity, we argue that the Court should conform to the longstanding consensus in administrative law that policy changes ought to be the product of rulemaking rather than adjudication.  While many have similarly echoed this preference, thus far jurists and scholars have not offered a fully developed justification for this preference, presented a set of criteria for choosing between policymaking forms, or outlined a mechanism for achieving this preference.

Arguing by analogy to the nearly uncontested truth in administrative law circles that a well-functioning, notice-and-comment rulemaking procedure has numerous advantages over adjudication for setting policy, we extend this preference for rulemaking over adjudication to decisions involving the Federal Rules of Civil Procedure.  In so doing, we present three criteria, which flow from the institutional advantages of the respective policymaking forms, that detail when this presumption should apply.  Namely, we conclude that civil procedure issues should be resolved by referring them to the Civil Rules 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 resolution that approximates a “legislative rule.”  Only when traditional tools of statutory interpretation – text, history, and purpose – will resolve a case should the Court retain its disposition in the adjudicatory form.

We close the article by offering 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.  The Court could implement our referencing proposal simply by amending the Supreme Court Rules.  Using the criteria the Justices might otherwise deploy for determining whether to grant certiorari, the Court would determine whether a particular Rules case merits its consideration.  At this stage, assuming the Federal Rules issue is cert-worthy, the Court could summarily grant the writ of certiorari, vacate the lower court opinion, remand the case, and order a stay pending action by the Civil Rules Advisory Committee.   Such a move would, in effect, operate like a certification of a question from a court to an agency, insofar as the lower court must merely await resolution of the question.  The Court could then forward the issue to the Civil Rules Advisory Committee for notice-and-comment rulemaking, a process that ultimately requires the Court to approve any newly proposed rule.  Because this process, without statutory amendment, would entail a lengthy review period, we also offer some ideas for streamlining the court rulemaking process and encouraging the Justices to take greater ownership over proposed Rules changes.  We ultimately 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 decision making.


* Lumen Mulligan is co-counsel for one set of pro-respondent amici in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds.  The comments here, however, are exclusively his and Professor Staszewski’s, not necessarily those of amici.  Additionally, this article was drafted well before the Court granted certiorari in Amgen, which is referenced here to illustrate the recurring nature of the choice-of-policymaking-form problem.

Recommended Citation: Lumen Mulligan and Glen Staszewski , Scholarship highlight: Who should resolve issues relating to the Federal Rules of Civil Procedure?, SCOTUSblog (Oct. 17, 2012, 10:41 AM),