Managerialism and its Discontents

Abstract

Managerialism has rooted itself in the American system of civil litigation in the 40 years since the amendment of Rule 16 to recognize a new form of judicial authority, and since Judith Resnik gave the phenomenon the name that serves as its shorthand moniker. Time has not perfectly tamed the inherent tensions between the mantle judges had to adopt in the face of increasingly complex, high-stakes, and multi-jurisdictional disputes and their traditional role as detached adjudicators. One ready manifestation of that tension is the back-and-forth between fixed and discretionary practices in federal courts. This essay examines the gyrations between formal rules of application and those understood to be contextual, and it presents three approaches to the familiar rules/standard divide in federal procedure: formal managerialism, algorithmic managerialism, and structural managerialism. The first is readily exemplified by reforms to social security cases, which received a carve-out from the Federal Rules of Civil Procedure in 2022 and a set of formal rules tailored to their unique issues. Algorithmic managerialism hopes to harness the growing power of Artificial Intelligence to craft custom sets of discovery, motion, and other practice rules at the outset of litigation to maximize judicial economy. Lastly, structural managerialism addresses how courts choose the most efficient fora, from multidistrict litigation to bankruptcy, for resolving polycentric disputes, most notably mass torts. We conclude our review of these trends with a simple reflection: Managerialism is not just an established feature of federal judicial practice, but a new expansion may be on the horizon.