Local Rules and the Limits of Trans-Territorial Procedure

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. …