Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion
60 Pages Posted: 22 Jun 2017 Last revised: 1 Jan 2018
Date Written: June 21, 2017
In litigation days of old, American courts jealously guarded their procedural powers through the doctrine of “ouster” and blocked most litigant efforts to create their own private procedural landscape. By the end of the twentieth century, the ouster doctrine was gone. Litigants now use an increasingly sophisticated set of contractual agreements that alter or displace standard procedural rules, a practice known as “private procedural ordering.” But this is not to say that judicial power has been displaced. In fact, the downfall of traditional ouster doctrine was accompanied by a rise in the scope and use of judicial discretion in procedural matters, culminating in the emergence of the “managerial judge” with administrative powers and responsibilities that would have seemed entirely foreign to a modern judge’s earlier counterpart.
This Article examines the link between the scope of judicial discretion and the acceptance (or even endorsement and encouragement) of private procedural ordering. Examples from civil procedure demonstrate the varying relationship dynamics between judicial discretion and private procedural ordering, from the uneasy compatibility found in the rules of discovery to the outright clash of values in the enforcement of forum selection clauses.
The relationship between judicial discretion and private procedural ordering is not coincidental. Rather, it reveals that the civil litigation landscape is one in which litigants are “co-managers” of litigation alongside the increasingly “managerial” judges. More controversially, this relationship also shows that litigants are “co-interpreters” of procedural rules alongside judges, sharing the authority to shape the contours of the meaning, scope, and application of many procedural rules.
Keywords: Judges, Arbitration, Privatized Procedure, Discovery, Settlement, Class Actions, MDL, Interpretation
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