The Spectrum of Procedural Flexibility

59 Pages Posted: 15 Mar 2018 Last revised: 19 Apr 2019

See all articles by Ronen Avraham

Ronen Avraham

Tel Aviv University - Tel Aviv University, Buchmann Faculty of Law; University of Texas at Austin - School of Law

William H. J. Hubbard

University of Chicago Law School

Date Written: March 11, 2018

Abstract

Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or even (sometimes) jurisdiction. Whether or not the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure. This paper is the first to document the full spectrum of procedural flexibility—the varied and sometimes surprising range of ways in which judges and parties can modify procedure in their cases. We show that procedure flexibility spans a broad spectrum from rigid inflexibility, to contracts to modify procedure, to unilateral control over procedure, and beyond, to a frontier of innovations—buying and selling of procedures between parties in different cases, and markets or auctions for everything from depositions to jury trials. Some of these possibilities seem radical, but we also show that, contrary to conventional wisdom, current civil practice permits similarly radical flexing of procedure. As a normative matter, we argue that even radical forms of flexibility (like markets in procedure) cannot be ruled out based on familiar normative criteria such as facilitating democratic participation, efficient dispute resolution, norm creation, or distributive justice. To the contrary, such forms of procedural flexibility may offer unexpected avenues for addressing inequities of the current status quo.

Suggested Citation

Avraham, Ronen and Hubbard, William H. J., The Spectrum of Procedural Flexibility (March 11, 2018). 87 University of Chicago Law Review, Forthcoming; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 843; U of Chicago, Public Law Working Paper No. 658. Available at SSRN: https://ssrn.com/abstract=3140585 or http://dx.doi.org/10.2139/ssrn.3140585

Ronen Avraham

Tel Aviv University - Tel Aviv University, Buchmann Faculty of Law ( email )

Tel Aviv
Israel

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1357 (Phone)

HOME PAGE: http://www.utexas.edu/law/faculty/profile.php?id=ra22397

William H. J. Hubbard (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-834-8999 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
96
Abstract Views
638
rank
272,437
PlumX Metrics