Reason Giving and Rule Making in Procedural Law
52 Pages Posted: 2 Feb 2014
Date Written: January 31, 2014
Judges are the managers of the cases litigated before them and the administrators of the procedural rules that govern the litigation of cases. This Article investigates problems with the procedural rules closely associated with a judge’s managerial capacity and suggests a new paradigm for crafting and evaluating these rules by drawing on the administrative law principles of reason giving in decisionmaking.
I argue that for certain types of procedural rules, rulemakers should abandon the task of trying to regulate procedure by promulgating rules or standards regarding the desired outcome of the application of the device at issue. Instead, they should turn their attention to regulating the process by which judges make procedural decisions. Borrowing concepts from administrative law, this Article argues that rulemakers should employ the technique of reason giving to regulate select procedural devices. Reason giving and the information it produces can work in tandem in the procedural realm by leveraging a core intuition — that requiring regulators and the regulated to engage in a reasoning process constitutes an effective form of regulation. The Article envisions how rulemakers can promote this sort of process among trial court judges, and how that process can ameliorate some of the problems that rulemakers encounter in current attempts to regulate procedural devices.
The Article concludes by suggesting that commentators rethink the value of precedential opinions in some procedural decisions. Rather than straining to identify uniformity in the application of vague standards, rulemakers should be satisfied that they have regulated an area through the delegation of authority and the promotion of a systematic use of that authority by judges as regulators and regulated subjects. These sorts of decisions have the potential for developing stability and standards in certain areas of procedural law.
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