A New Approach to Local Rules

Abstract

The Federal Rules of Civil Procedure no longer govern all non-substantive decisions in federal civil litigation. Rather, control over a case’s procedural course has shifted to district courts’ local rules, of which there are currently more than 6,000. Despite the proliferation of local rules and their increasing importance, federal procedural scholarship remains focused on the Federal Rules. That scholarship is rigorous, highlighting the Federal Rules’ history and purpose, and proposing ways that the Rules might adapt to the evolving nature of federal litigation. Local rules should be subject to similar scrutiny. However, it is not enough to borrow theories applied to the Federal Rules. A new approach is needed. Scrutiny of local rules must first consider how they are created. Though Federal Rules are amended through a process that requires public comment and debate, local rules are adopted or amended through a process that does not automatically give notice of impending changes to affected parties, nor does it provide all affected parties with a meaningful way to comment. Applying this new approach and its focus on meaningful notice and comment, the Article compares local patent rules to local rules governing pro se prisoner litigation, arguing that when parties are not allowed to participate in the local rule adoption and amendment process, the rules that result are procedurally and substantively unfair. Finally, it proposes how District Courts can ensure that all parties potentially affected by proposed local rules receive actual notice and a real opportunity to comment.