58 Pages Posted: 30 Aug 2017 Last revised: 22 Feb 2018
Date Written: 2017
Agencies and courts have generally been understood to relate in two primary ways. First, judicial review of agency action under the Administrative Procedure Act is the cornerstone of the agency-court relationship. Second, and more recently, scholars have identified how agencies act as litigation gatekeepers, influencing which suits may proceed in federal court. But we have yet to recognize a third, critical and emerging relationship between agencies and courts: agencies acting as litigation rulemakers.
As litigation rulemakers, agencies implicitly amend the Federal Rules of Civil Procedure and shape how litigation proceeds in federal court. Agencies have engaged in notice-and-comment rulemaking restricting the availability of binding arbitration, adjudicated cases to require courts to grant class relief, and issued guidance limiting the confidentiality of settlement agreements. Whether through notice-and-comment rulemaking, adjudication, guidance, or other actions, agencies are directing judges as to how they should address cases that appear before them. In so doing, agencies are effectively modifying the default procedural regime set forth by the Federal Rules.
Understanding litigation rulemaking deepens our awareness of how the Federal Rules are shaped and put into practice in the federal courts. A closer look at litigation rulemaking also illuminates the increasing complexity of the relationship between agencies and courts. This undocumented pathway for procedural reform complements the formal Rules Enabling Act process led by the federal courts’ Rules Committee. Agencies acting as litigation rulemakers are also imposing additional constraints on the federal courts. When courts respond to these agency actions, typically through judicial review, a novel institutional dialectic arises. Moreover, by effectively amending the procedural regime that governs federal litigation, agencies are shaping substantive law.
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