Legal Theory Blog

Robin Effron (Brooklyn Law School) has posted The Shadow Rules of Joinder (Georgetown Law Journal, Vol. 100, 2012) on SSRN. Here is the abstract:

The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same “transaction or occurrence” or a “common question of law or fact.” Both phrases have proved to be notoriously tricky in application. Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules.

This Article challenges that wisdom by suggesting that the doctrinal confusion can be attributed to deeper theoretical divisions in the judiciary, particularly with regard to the role of the ontological categories of “fact” and “law.” These theoretical divisions have led lower court judges to craft shadow rules of joinder. “Redescription” is the rule by which judges utilize a perceived law–fact distinction to characterize a set of facts as falling inside or outside a definition of commonality. “Implied predominance” is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement.

After demonstrating the instability of the shadow rules, this Article suggests that the Rules drafters move away from a commonalities approach to joinder and toward a system in which each joinder directive contains criteria that stress the unique purpose of each joinder device and that account for the different managerial challenges that judges face in granting or denying joinder under each device. Such rules would not remove the delicate context-specific determinations from judges but would result in greater transparency and consistency of joinder decisions.

Highly recommended–a deeply interesting and elegant treatment of the joinder rules that will be essential reading for all proceduralists. Download it while its hot!

As frequent readers of LTB might expect my own approach to these issues is a bit different. One of the most interesting sections of the essay concerns the interpretation and construction of the FRCPs. Effron notes:

Although the FRCP on joinder share common text in either the “transaction or occurrence” or “common question” language, it is not obvious that they should be subject to a uniform interpretation.

And:

Two factors conspire to muddle the definitions of “transaction or occurrence” and “common question of law or fact”: The first factor is the broadness of the terms. The second factor is the inadequate fit between the purpose of the rules and the terminology. This is particularly so because “courts most often do not articulate how the policies underlying a particular procedure or rule influence or shape their definitions of what constitutes a transaction.”66

In the absence of a consistent definition of commonality tied either to “transaction or occurrence” or “common question of law or fact,” courts have developed shadow rules that are an attempt to grapple with the competing concerns of meeting a commonality standard while exercising managerial control over the shape of litigation. My argument is not that courts have been deliberately derelict in providing a clear interpretation of these phrases, nor that they, for the most part, have gotten it wrong. Instead, I believe that courts are unlikely to settle on a definition for either of these phrases when the ideal level of commonality is vague and the purposes behind each rule of joinder are diverse. Just as lawyers have developed “informal”67 or “parallel”68 systems of aggregation and case management for the FRCP, the shadow rules have been created by judges to impose a level of formality and rigor on otherwise broad rules.

In my view, the phenomena that Effron describes provide a classic example of the confusion that results from collapsing the distinction between interpretation and construction. (For a brief statement of the distinction, see The Interpretation-Construction Distinction.) Interpretation (in the technical sense specified by the distinction) is the activity of discerning the communicative content or linguistic meaning of the rules. Words like "transaction" or "occurrence" and phrases like "common question of law or fact" are likely to have only a single linguistic meaning–despite the contextual differences between the rules in which they occur. The real difficulties arise when we turn from interpretation to construction–the activity of determining the legal effect of the rules, which may (and frequently does) involve the construction of intermediate legal doctrines that resolve vagueness and supplement the content of these words and phrases in order to achieve the different purposes of the rules in which they are embedded. The "shadow rules" created by judges are constructions–and not interpretations of the FRCPs.