Robert G. Bone
90 Texas L. Rev. 1329

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Procedural rules have different sources and are made in different ways.  Some boast a constitutional pedigree, while others are legislatively created.  Some, such as the Federal Rules of Civil Procedure, are the product of a formal committee-based rulemaking process, while others are rooted in the common law or the rulemaking of local courts.  In this article, Professor Robert Bone explores yet another source of procedural rules: party rulemaking.  Party rulemaking involves parties choosing general procedural rules for their lawsuits by agreement.  Today, the latitude given to party rulemaking is quite limited in adjudication, even though it is very broad in arbitration.  For example, parties can contract for discovery rules in civil cases, but it is not clear that they can alter otherwise applicable pleading rules, joinder rules, summary judgment rules, and so on.  The scope of party rulemaking has been the subject of intense debate in recent years.  Some scholars favor an expansive approach, one that would turn many of the officially promulgated rules into defaults.  Others urge much stricter limits.  Yet arguments on both sides of the debate are incomplete and rather weak in important respects.  For example, they fail to appreciate the difficulty of evaluating costs and benefits in the highly strategic environment of litigation, and when they discuss the impact of party rulemaking on adjudicative legitimacy, they tend to rely on perceived legitimacy and ignore the importance of normative legitimacy.

In this article, Bone takes a close look at this debate.  He critically examines the conventional arguments for and against party rulemaking and evaluates the balance of costs and benefits from utilitarian and rights-based perspectives.  He concludes that the cost-benefit case against party rulemaking is unpersuasive except in certain cases, and he identifies three limited scenarios that justify judicial restraint in enforcing agreements.  He then turns to arguments from adjudicative legitimacy, those that claim that broad party rulemaking licenses illegitimate departures from the way civil adjudication should be conducted.   Arguments of this type require a theory of adjudication that is capable of identifying core elements essential to the institution’s legitimacy.  In the case of American civil adjudication, he argues, the core elements have to do with an institutional commitment to a distinctive mode of principled reasoning.   It follows that the most troubling examples of party rulemaking are those that tinker with procedures that frame, guide, or incentivize this reasoning process.  In the end, Bone concludes that while some important aspects of procedure should be off limits to party rulemaking, parties in general should have broader freedom to fashion their own procedural rules than they do today.