Urja Mittal (Yale University - Law School) has posted Litigation Rulemaking (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
Agencies and courts have long been understood to relate in at least two ways. First, judicial review of agency action under the Administrative Procedure Act serves as the cornerstone of the agency-court relationship. Second, some agencies act as litigation gatekeepers, influencing which suits may proceed in federal court in certain circumstances. But scholars and commentators have yet to document a third, critical and emerging relationship between agencies and courts: agencies acting as litigation rulemakers.
As litigation rulemakers, agencies are taking actions that implicitly amend the Federal Rules of Civil Procedure and shape how litigation proceeds in federal court. For instance, 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, with each of these actions, agencies are directing judges as to how to treat cases that appear before them. In so doing, agencies are effectively modifying the default procedural regime set forth by the Federal Rules. I term this pattern of agency action to be “litigation rulemaking.”
Understanding litigation rulemaking deepens our understanding of the Federal Rules, their limits, and the range of amendments thereto. A closer look at litigation rulemaking also illuminates the increasing complexity of the relationship between agencies and courts today. This undocumented pathway for procedural reform complements the formal Rules Enabling Act process led by the federal courts’ formal Rules Committee. Moreover, through these actions, administrative agencies are imposing additional constraints on judicial action, one that has yet to be understood or examined. When courts respond, typically by exercising judicial review, a novel institutional dialectic arises, involving agencies and courts jointly crafting the federal procedural regime. Of note, agencies effectively amending the Federal Rules that govern federal litigation are also shaping the substantive law that emerges.