• Institutional Competence and Civil Rules Interpretation

    Author(s):
    Lumen N. Mulligan, Glen Staszewski
    Date:
    2016
    Group(s):
    MSU Law Faculty Repository
    Subject(s):
    Jurisprudence, Law
    Item Type:
    Article
    Tag(s):
    Cornell L. Rev. Online, FacPubs, Other law
    Permanent URL:
    http://dx.doi.org/10.17613/e5by-3097
    Abstract:
    This essay responds to Pragmatism Rules by Professor Elizabeth Porter, which argues that the Supreme Court is justified in eschewing, at least at times, traditional tools of statutory construction when it interprets the Federal Rules of Civil Procedure. Porter devotes substantial attention in her piece to our prior work on the Supreme Court’s methods for implementing the Federal Rules. This response essay highlights some of the strengths of Porter’s article and identifies substantial areas of agreement. It also parts company with her analysis insofar as she contends that the Supreme Court is justified in supplanting the Rules drafters’ policy prescriptions with its own or crafting novel procedural policy via adjudication. The essay further argues that the "Mulliszewski model" of Rules interpretation is superior to her proposed alternative based on the competencies of the relevant institutional actors; namely, the Rules Advisory Committee, the lower federal courts, and the Supreme Court.
    Metadata:
    Published as:
    Journal article    
    Status:
    Published
    Last Updated:
    2 years ago
    License:
    Attribution-NonCommercial
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