Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking

By Moller, Mark | The Review of Litigation, Winter 2018 | Go to article overview

Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking


Moller, Mark, The Review of Litigation


INTRODUCTION.............581

I. THE GREAT RULEMAKING DEBATE............585

A.The Court 's Inconsistent Approach to Interpreting the Federal Rules.........585

B. The Scholarly Response....587

C. Complicating the Debate.......590

D. Even More Complications: Rulemaking and Compensating Adjustments.........591

II. COMPENSATING ADJUSTMENTS AND THE CONSTITUTIONAL SECOND BEST.......593

A. A Short Introduction to Compensating Adjustments.......593

B. A Taxonomy of Compensating Adjustments..........596

1. Reinforcements........596

2. Switching.......599

3. Substitution........601

4. Compensating Adjustments versus Compromising Adjustments.......602

III. COMPENSATING ADJUSTMENTS IN CIVIL PROCEDURE: A CASE STUDY........603

A. Taming the Private Attorney General.....605

1. The Party Limit.......605

2. The Collapse of the Party Limit: Paths Not Taken.... 608

3. Compensating for the Collapse of the Party Limit: The Article III Settlement......612

4. The Article III Settlement as a Compensating Adjustment.......620

B. Extending the Article III Settlement to Civil Procedure ....622

1. Reconciling Procedure and the Settlement Through a Substitution Strategy.......622

2. Substitution and the Rulemaking Bureaucracy........627

3. The Substitution Strategy in Action.........631

a. From Martin v. Wilks to Ortiz v. Fibreboard........632

b. The Continuity between Constitutional Law and Ordinary Procedural Law........642

IV. Implications...........646

A. The Ridemaking Debate, Revisited..........646

B. Avenues for Further Investigation.......649

1. Class Actions and the Structural Constitution........649

2. Designing the Rulemaking Bureaucracy.........651

3. The Fragility of Intra-Branch Settlements.......652

Conclusion........655

Introduction

In different contexts, the Supreme Court pursues what Adrian Vermeule calls second-best constitutionalism or compensating adjustments-a plastic process of adapting non-constitutional law to compensate for the underenforcement of constitutional values in formal constitutional doctrine.1

Scholars of civil procedure haven't paid attention to the literature on compensating adjustments. But they ought to. That literature sheds light on a simmering controversy over how the Supreme Court should interpret the Federal Rules of Civil Procedure.

Critics argue that the Supreme Court can't make up its mind about how to approach the Federal Rules. Sometimes it pronounces that procedural reform must be adopted "through the rulemaking process and not through.. . adjudication."2 And it, accordingly, interprets the Rules like statutes-based, that is, on evidence of the rulemakers' intent.3

Other times the Court takes an "antistatutory" approach.4 It imposes procedural reform from on high-adopting constructions that reflect the Court's preferred procedural policy without reference to the intent of the rulemakers.5

The Court's indecisiveness has split proceduralists into warring camps, each arrayed in favor of one approach or the other.6 Both camps, though, agree on one thing: The Court's willingness to "toggl[e]"7 between "statutory" and "antistatutory" approaches to Rules interpretation is incoherent.8

This article stakes out new territory by questioning that premise. It is sometimes plausible, I will argue, to view the Supreme Court's "statutory" and "antistatutory" modes of Rules interpretation as flip-sides of the same coin: as inter-locking parts of a judicial strategy of compensating adjustment, designed to mitigate the underenforcement of constitutional norms in civil procedure.

The claim here differs from the uncontroversial observation that the Court sometimes employs an avoidance canon when interpreting procedures raise hard questions under existing constitutional doctrine.9 Rather, my focus is on the Court's strategy for protecting constitutional values that go unenforced in existing constitutional doctrine. …

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