Document Type

Article

Publication Date

2016

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.

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