The Yale Law Journal

February 2018

Litigation Rulemaking

Administrative LawCivil Procedure

abstract. 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. The legitimacy of litigation rulemaking is bolstered by its similarities to the Rules Enabling Act process for amending the Rules, and the two processes often complement each other. In many ways, litigation rulemaking illuminates the complexity of the relationship between agencies and courts. Agencies acting as litigation rulemakers often impose additional constraints on the courts, and when courts respond to these agency actions, a novel institutional dialectic arises. Notably, by effectively amending the procedural regime that governs federal litigation, agencies are also shaping substantive law.

author. Yale Law School, J.D. 2017. I am immensely grateful to Nicholas Parrillo for guiding this project from its inception. I am also indebted to Judith Resnik for imparting the importance of courts, procedure, and commitments to justice. Many thanks to Meredith Foster, Anthony Sampson, Arjun Ramamurti, Kyle Victor, Erin van Wesenbeeck, and the editors of the Yale Law Journal for perceptive editing and feedback. Additional thanks to Sarah Burack, Matthew Butler, John Giammatteo, Megan McGlynn, Dean Robert Post, Geoff Shaw, Garrett West, and Adam Zimmerman for their insights.