The Unwritten Norms of Civil Procedure

Abstract

The rules of civil procedure depend on norms and conventions that control their application. Civil procedure is a famously rule-based field centered on textual commands in the form of the Federal Rules of Civil Procedure (FRCP). There are over eighty rules, hundreds of local judge-made rules, due process doctrines, and statutory rules, too. But written rules are overrated. Deep down, proceduralists know that the application of written rules hinges on broader norms that animate them, expand or constrain them, and even empower judges to ignore them. Unlike the FRCP and related doctrines, these procedural norms are unwritten, sociological, flexible, and informal. Norms shape every aspect of the litigation system, from the division of labor between state and federal judges, to the application of Rule 11 sanctions, discovery technology, and multidistrict litigation. Yet the field of civil procedure has not fully grappled with these procedural norms in a systematic way nor appreciated the power of norm-making to resolve current problems. This Article explores the influence of norms in civil procedure with three goals in mind. First, the Article argues that a wide array of litigation practices, culture, and conventions constitute what it calls “procedural norms.” Conceptualizing civil procedure in this manner allows the Article to examine how these norms are created, changed, codified, or replaced. It also reveals the importance of norm entrepreneurs and the problem of sticky norms in civil procedure. Second, the Article’s core goal is to explain the role of norms in civil litigation—how they organize judicial administration, serve as structural features of our litigation system, and distribute power among different legal actors, including federal and state judges. A surprising amount of our civil procedure law boils down to unwritten practices and conventions that form a large body of procedural norms. It is these norms that often implement the abstract values of our procedural system. And, crucially, because norms can trump textual commands, changes to the FRCP may be less relevant without a deeper account of the norms behind them. Finally, the Article argues that a pivot to norm-making can be an important corrective to the ossification of the federal rulemaking process. Procedural norms can solve litigation problems because they are flexible and sometimes even subversive—they prioritize values that are contrary to the commitments of the FRCP. Ultimately, the Article seeks to make norms a first-class citizen in the study of civil procedure, on par with rules and case law in their importance and significance