Lumen N. Mulligan and Glen Staszewski (University of Kansas Law School and Michigan State University College of Law) have posted Institutional Competence and Civil Rules Interpretation (Cornell Law Review Online, Vol. 101 Page 64, 2016) on SSRN. Here is the 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.
And here is a link to Porter's Pragmatism Rules.
Both articles are highly recommended. Both articles gesture towards an important question: what are the implications of the general move towards textualism and away from both purposivism and intent based approaches to statutory and constitutional interpretation. There is, I should think, a very strong case for plain-meaning textualism as the default approach to interpretation of the rules. One of the great virtues of this work is that it begins to open up this important field of investigation.