Party Subordinance in Federal Litigation
55 Pages Posted: 17 Nov 2013 Last revised: 28 Mar 2015
Date Written: December 31, 2013
American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my theory, parties fall in the lowest tier of the power heirarchy, beneath the law on top and judicial authority in the middle. Party subordinance means that the law — not party agreement — binds the court, and even when parties can lawfully make litigation choices, those choices generally do not bind the court. The upshot is that parties in fact have far less control over their litigation than previously assumed. Party subordinance suggests that the trend toward litigation customization is on shakier footing than presently acknowledged, reorients some key elements of the normative debate surrounding customization, and exerts significant pressure in important doctrinal areas, including personal jurisdiction, forum selection, choice of law, and motion waiver. At its broadest, the theory of party subordinance shifts the way the federal litigation system views the heirarchy among parties, courts, and the law.
Keywords: private ordering, procedure, customization, forum selection, personal jurisdiction, arbitration, FAA, inherent power, waiver, forfeiture, consent, stipulation, venue, jury demand
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