Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking

80 Pages Posted: 1 May 2017 Last revised: 11 Mar 2018

Mark Moller

DePaul University - College of Law

Date Written: April 29, 2017

Abstract

The Supreme Court’s interpretation of the Federal Rules of Civil Procedure has attracted a bevy of critics. The Court, they note, vacillates between "statutory" and “antistatutory” Rule constructions. This, the critics charge, is just plain incoherent. The Court needs to make up its mind about how to interpret the Federal Rules.

This article argues that these criticisms misfire because they don’t take into account “compensating adjustments.” In domains like administrative law, the Court compensates for the perceived underenforcement of constitutional values in formal constitutional doctrine by giving voice to those values through sometimes unconventional interpretations of ordinary statutes.

Enclaves of civil procedure, it turns out, are also characterized by compensating adjustments. And missing this dimension of the Court’s Federal Rules interpretations has led the critics astray. Viewed from the vantage of ordinary interpretive doctrine, the Court’s pattern of Federal Rules interpretations in these enclaves looks strange and incoherent. But viewed from the vantage of the literature on compensating adjustments, that pattern, I will argue, is coherent and unremarkable.

Keywords: procedural interpretation, compensating adjustments, civil rulemaking

Suggested Citation

Moller, Mark, Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking (April 29, 2017). 36 Rev. Litig. 579 (2018) . Available at SSRN: https://ssrn.com/abstract=2960710

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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