Litigation Rulemaking

Abstract

Agencies and courts have generally been understood to relate in two primary ways. First, judicial review of agency action under the Administrative Procedure Act is the cornerstone of the agency-court relationship. Second, and more recently, scholars have identified how agencies act as litigation gatekeepers, influencing which suits may proceed in federal court. But we have yet to recognize a third critical and emerging relationship between agencies and courts: agencies acting as litigation rulemakers. As litigation rulemakers, agencies implicitly amend the Federal Rules of Civil Procedure and shape how litigation proceeds in federal court. 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, agencies are directing judges as to how they should address cases that appear before them. In so doing, agencies are effectively modifying the default procedural regime set forth by the Federal Rules.