Courts can do protection

ABSTRACT In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present a justification for favoring rulemakings over adjudications by analogy to administrative law. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron step-two-like ambiguity, or (c) seeks a resolution that approximates a legislative rule. Only when traditional tools of statutory interpretation—text, history, and purpose—will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking. [AUTHOR CREDITS OMMITTED] INTRODUCTION Like administrative agencies, “[t]he Supreme Court is a regulator.”1 Nowhere is this more true than in the civil procedure context. Like an administrative agency, the Court’s role in civil procedure is to set policy—not simply to resolve particular disputes.2 And just like most administrative agencies—or regulators if you will—the Court may set civil procedure policy through case-by-case adjudication, as it did in Bell Atlantic Corp. v. Twombly3 and Ashcroft v. Iqbal 4 when it reinterpreted Federal Rule of Civil Procedure 8(a)(2),5 or by promulgating generally applicable rules through a notice-and-comment rulemaking procedure. As Justice Stevens wrote in his Twombly dissent: “I would not rewrite the Nation’s civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so. Congress has established a process—a rulemaking process—for revisions of that order.”6 Although the Court faces this same choice between proceeding by rulemaking or adjudication every time it addresses a civil procedure issue—whether it is setting pleading standards, determining the advisability of sanctioning entire law firms for the misconduct of counsel,7 or refashioning the law of summary judgment8 —it has yet to devise a coherent framework for making this decision. Drawing lessons from administrative law, we aim in this Article to resolve this question by proposing that the Court create a presumption in favor of rulemaking over adjudication when deciding civil procedure issues. Administrative agencies regularly face the same adjudication-versusrulemaking decision confronted by the Court in the civil procedure context.9 Since the New Deal, Congress has routinely delegated broad lawmaking authority to administrative agencies charged with implementing a range of federal programs, just as it has delegated procedural rulemaking authority to the Supreme Court. In the course of implementing their delegated statutory authority, administrative agencies are tasked with numerous policy choices. For example, the Federal Trade Commission (FTC) must decide whether to consider certain business practices “unfair or deceptive.”10 In making these determinations, the FTC, like most other administrative agencies, has the discretion to choose between case-by-case adjudications, which create precedent, or by notice-and-comment rulemakings. Although statutes occasionally specify that an agency must use rulemaking or adjudication to make certain policy decisions, most statutes delegate authority to agencies both to promulgate orders and rules and to leave it up to the agency to decide whether to make policy pursuant to adjudication or rulemaking. This decision is known in administrative law as an agency’s “choice of policymaking form.”11 In SEC v. Chenery Corp.,12 the Supreme Court held that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”13 Federal courts thus rarely second-guess an administrative agency’s decision regarding whether to use rulemaking or adjudication to make a particular policy decision. Given the ubiquity of these determinations, jurists and scholars have recognized that an agency’s choice of policymaking form is a momentous decision and have developed a rich body of knowledge as to which form is superior for addressing particular types of questions.14 We believe administrative law has much to offer the Court when it is deciding which policymaking form it should choose in making civil procedure decisions. We contend that because the Court, like an agency, may set procedural policy via either form, it is apt to analogize the Court to an administrative agency in this area.15 Given this congruity, we argue that the Court should conform to the longstanding consensus in administrative law that policy changes ought to be the product of rulemaking rather than adjudication. While many have similarly expressed a preference that significant procedural policy changes be made by way of rulemaking, not adjudication,16 to date, jurists and scholars have not offered a fully developed justification for this preference, presented a set of criteria for choosing between policymaking forms, nor outlined a mechanism for achieving this preference. Thus, in Part I, we further develop the understudied analogy between the legal authority of administrative agencies and the Court in the field of civil procedure. In so doing, we review the power of the Court, like an agency, to set policy through case-by-case adjudication and the Court’s agency-like rulemaking power to draft and revise the Federal Rules of Civil Procedure. We also strengthen this analogy by expounding on the striking similarities between the evolution of rulemaking experienced by both the Court and agencies.