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Pragmatism Rules

65 Pages Posted: 20 May 2015 Last revised: 10 Nov 2015

Elizabeth G. Porter

University of Washington School of Law

Date Written: November 9, 2015

Abstract

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates both. This theory simultaneously advances our understanding of the Rules and challenges the hegemony of statutes, which currently provide the dominant — if not sole — blueprint for theories of interpretation.

Keywords: Federal Rules of Civil Procedure, FRCP, Fed. R. Civ. P., court rules, statutory interpretation, statutory construction, administrative law, managerial interpretation, Supreme Court, Roberts Court, rulemaking, Advisory Committee, Judicial Conference

Suggested Citation

Porter, Elizabeth G., Pragmatism Rules (November 9, 2015). Cornell Law Review, Vol. 101, No. 1, Pp. 123-85 (2015); University of Washington School of Law Research Paper No. 2015-14. Available at SSRN: https://ssrn.com/abstract=2606769

Elizabeth Porter (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
206-616-7115 (Phone)

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