Changing the Litigation Game: An Ex Ante Perspective on Contractualized Procedures

Article excerpt

I. Introduction

The practice of parties agreeing on the procedures that will govern the resolution of their dispute is an inherent characteristic of various private mechanisms for dispute resolution, such as arbitration and mediation. In these processes, not only do the parties set the procedures that will apply to their dispute, but they also choose their own judge, set out the rules of evidence, and agree on the substantive applicable law.1 By having considerable freedom to fashion the way that their dispute will be resolved, contracting parties can realize benefits that enhance their welfare.

However, applying a similar idea of private parties designing procedural rules in public litigation seems intuitively problematic. The private-public tension that parties' procedural rulemaking creates raises normative questions about the contours of parties' autonomy within adjudication: Should parties be allowed to depart from publicly created rules of procedure designed to guarantee procedural justice and a fair, efficient resolution of disputes? Should there be any limits to their freedom in customizing procedures? What criteria should inform the enforcement of private agreements setting procedures in public courts?

These questions concern procedural agreements made at two different points in time: before and after the dispute arises. After the dispute arises and a claim is filed, litigants may agree on procedures that would govern in the course of litigation. These agreements are a product of the adversary model of litigation, which is characterized by litigants' control over the way their dispute is adjudicated.2 Since the litigants, and not the court, can best represent their interests, allowing them to agree on the procedures that will apply during trial can reduce their costs, lower their risks, and guarantee a fair outcome. Indeed, the Federal Rules of Civil Procedure give litigants wide latitude to agree on various procedures.3 For example, they may enter stipulations,4 consent to waiver of service of process,5 amend pleadings,6 waive the right to a jury trial,7 and agree on the extent of discovery proceedings8 or on the taking of depositions.9

Before the dispute arises, parties may enter pre-dispute agreements that set out procedures that will apply to the resolution of future disputes within public adjudication. These agreements, which are mostly made as part of a contract stipulating the parties' substantive rights and obligations, may include various procedural matters such as the statute of limitations, interim measures, trial by jury, the scope of discovery, and the rules of evidence.

The concept of agreements that set procedures in adjudication has only recently begun to attract academic attention.10 Robert G. Bone's Party Rulemaking: Making Procedural Rules Through Party Choice11 is an outstanding contribution to the scholarship that seeks to define the contours of parties' procedural freedom within public courts. Bone examines the arguments for and against party rulemaking and clarifies the difficulty in assessing its limits from both a utilitarian and a right-based perspective.12 He then concludes that party rulemaking should be limited in three distinct situations: when parties mutually agree to exclude a third party whose legal rights might be affected; when the procedural agreement is one-sided; and when the agreement restricts private enforcement of substantive law or conflicts with a proper consideration of civil rights claims.13 For other situations Bone suggests that if party autonomy in fashioning procedure is to be limited, it must be because it risks threatening the normative legitimacy of public adjudication.14 Consequently, Bone identifies adjudication's core characteristic as its commitment to a distinctive method of reasoning. He explains that "because the reasoning process is central to adjudication, we should focus on those procedural rules that have a strong effect on how that process is conducted. …