65 Pages Posted: 20 May 2015 Last revised: 10 Nov 2015
Date Written: November 9, 2015
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: 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