Local rules and the limits of trans-territorial procedure.

• Author: Jordan, Samuel P.

ABSTRACT

Local rules have been unfairly cast as procedural villains. Their qualifications for the role are purportedly numerous, but chief among them is that they violate a fundamental principle embedded in our post-1938 procedural regime: procedural rules applied in a federal case should not be sensitive to location. It must, of course, be conceded that local rules do produce territorial variations in procedure. But in practice, the principle of trans-territoriality is aspirational, and is undermined by an array of factors--ranging from competing interpretations of written rules to the supplementation of those rules through exercises of inherent power--that inevitably contribute to location-based variations in the actual procedural requirements imposed in federal cases. Properly situated, local rules are not an outlier, but are merely one form of territorial variation among many. To assess local rules, therefore, we should not ask whether they produce territorial variation, but whether a procedural regime that permits them produces a better mix of territorial variation than one that does not. When viewed this way, local rules emerge as attractive--if not quite heroic--because they are transparent, they reflect participation by non judicial actors, and they promote intradistrict equality in the treatment of cases.

TABLE OF CONTENTS INTRODUCTION I. TRANS-TERRITORIALITY AS A PROCEDURAL VALUE A. From Conformity to Uniformity B. The Ends of Trans-Territoriality 1. Nationalization 2. Equality and Fairness 3. Efficiency 4. Complete Uniformity II. LOCAL RULES AS A PROCEDURAL SCOURGE A. A Primer on Local Rules B. A Primer on Local Rules Critique III. THE UNIVERSE OF TERRITORIAL VARIATION A. Standing Orders B. Procedural Interpretation C. Procedural Discretion D. Inherent Authority E. Procedural Common Law IV. RETHINKING TRANS-TERRITORIALITY--AND REFRAMING LOCAL RULES A. Inevitability and Exchangeability B. A Comparative Assessment of Local Rules 1. Transparency and Nationalization 2. Participation and Quality 3. Scope and Equality CONCLUSION INTRODUCTION

On January 13, 2010, the United States Supreme Court stayed the live broadcast of a federal trial to decide the constitutionality of California's Proposition 8. (1) In doing so, the Court took pains to avoid any discussion of the underlying merits of the case or the general question of whether federal trials should be broadcast. (2) Instead, the Court justified the stay on fairly technical grounds: the local rule used to support the broadcast order was invalid because it had been improperly amended. (3) This ruling marked only the fourth time since the introduction of the Federal Rules of Civil Procedure in 1938 that the Supreme Court has addressed local rules and local rulemaking authority. (4) Although much of the per curiam majority opinion focused on the details surrounding the promulgation of the particular rule at issue, (5) the opinion also bemoaned the "lack of a regular rule with proper standards." (6) This latter concern is unrelated to the procedures used to sustain the amendment, but is directed instead at local rules themselves.

Thus, the case may reflect some unease with the status of local rules in the federal system. If so, the Supreme Court is late to the party. Hostility toward local rules is as old as the Federal Rules themselves. Over the past seventy years, a steady stream of commentators and committees has recommended that the role of local rules in the federal procedural structure be reduced or eliminated. (7) The core complaint motivating these recommendations is that local rules promote procedural disuniformity. As Part I explains, the adoption of a federal system of procedural rules reflected an embrace of two forms of procedural uniformity: trans-substantivity and trans-territoriality. (8) Trans-substantive procedure requires the application of the same procedural rules regardless of substantive law; trans-territorial procedure requires the application of the same procedural rules regardless of geography. Local rules may create tension with the norm of trans-substantivity if they are used to impose different procedural requirements for different types of cases. (9) But as discussed in Part II, the larger problem with local rules is that they are almost unavoidably in tension with the norm of trans-territoriality. Local rules create variations in procedural requirements precisely on the basis of geography, and for that reason, they have long been viewed as fundamentally inconsistent with the Federal Rules project.

To this point, the defense of local rules has been sporadic and largely uninspired. One recurring argument is that some rulemaking authority is necessary to deal with issues that are inescapably local. (10) At its best, this narrow argument stops well short of defending the current scope of local rulemaking power. Defenders of local rules have also argued that critics improperly undervalue the benefits of disuniformity in general and local rules in particular. Examples of the unappreciated benefits cited include the potential for local rules to act as "experiments" leading to broader procedural reform, (11) lower barriers to local procedural change, (12) and assistance with vital court administrative functions. (13) Once these countervailing benefits are properly appreciated, they may in some instances justify the cost of deviating from the ideal of nationally uniform procedure. (14) These arguments are useful because the identified benefits are real, but they remain susceptible to the response that the competing costs are too great.

This Article develops a more robust defense of local rules, one that is rooted in an acknowledgement that deviations from the norm of trans-territoriality are unavoidable and unrelated to the choice to permit local rules. Trans-territoriality has achieved a status as a fundamental procedural value, but Part III demonstrates that this value is largely aspirational in practice. The actual procedural requirements imposed on litigants are inevitably sensitive to the location of the suit--and the identity of the judge. (15) The sources of territorial variation include not just local rules, but also standing orders, (16) procedural interpretation, (17) procedural discretion, (18) inherent authority, (19) and procedural common law. (20) Moreover, these forms of territorial variation often substitute for one another, such that the presence of a local rule may displace the use of some competing form. (21)

Thus, the debate about local rules needs to be resituated within the larger universe of territorial variation. Part IV begins that process. The choice to permit local rules is not a choice to permit territorial variation, but a choice to permit territorial variation of a certain form. And the question of whether to retain local rules, and in what capacity, turns on how local rules interact with and compare to other forms of territorial variation. Relative to those other forms, local rules emerge as preferable along several dimensions. They are transparent in the sense that they are visible, easily discoverable, and knowable in advance. They are participatory in the sense that nonjudicial actors are guaranteed a role in their creation. And they are stabilizing in the sense that they make the actual--as opposed to the formal--procedural requirements imposed within a judicial district more consistent.

1. TRANS-TERRITORIALITY AS A PROCEDURAL VALUE

   Trans-territoriality, which involves the application of the same procedural rules regardless of the geographic location of the suit, was one of the guiding values in the creation of the Federal Rules of Civil Procedure. (22) Now, some seventy years after that creation, this value is firmly entrenched and rarely questioned. Civil procedure students learn very early that the primary source to be studied is the body of procedural rules that applies in every federal court, but that state procedural rules may--and often do--vary. The idea that procedure tracks the level of the court rather than its location is accepted, and indeed seems obvious. But it is worth remembering that trans-territoriality was once an innovation, and a contested one. (23) Part I defines trans-territoriality, and describes why it was--and continues to be--perceived as valuable.

   1. From Conformity to Uniformity

      The introduction of the Federal Rules marked a departure from the prevailing stance of conformity with state procedural rules to a compelling stance of uniformity across all federal districts. The conformity regime was governed by the Conformity Act of 1872, (24) although cruder forms of conformity had been in place since 1789. (25)

      Under the Conformity Act, federal courts were required, subject to caveats, (26) to apply the "practice, pleadings, and forms and modes of proceeding" of the states where they sat. (27) This predictably resulted in a balkanized set of federal procedural rules that broke down along state lines, and therefore generated what at first blush looks like the exact opposite of uniformity. (28) But in fact, the conformity regime was designed to promote rather than destroy uniformity, although the particular uniformity envisioned was intrastate rather than interdistrict. (29) That is, conformity had as its goal the creation of a single set of procedural rules that would apply within a given state, regardless of whether a given case was filed in federal or state court. (30)

      One problem with the conformity regime was that it did not serve its vision of uniformity particularly well. In part this failure was due to incomplete coverage. The Act applied only in the common law context; federal equity cases were governed by a different set of procedures--defined by federal common law and the Supreme Court by way of its supervisory power--than state equity cases. (31) In addition, the failure was due to the less-than-ironclad requirements within the scope of coverage. The...