Civil procedure professors frequently experience the following classroom scenario. The professor asks a bright and well-prepared student to explain how lawyers and judges should react to a given set of facts. The student has parsed the relevant rules and analyzed opinions that interpret the rules. Drawing on this knowledge, the student articulates factors that will guide discretion. But the professor interjects that some of the student’s plausible assumptions are inconsistent with the reality of civil litigation. For example, lawyers often are reluctant to file certain kinds of motions that seem sensible, and judges often are reluctant to grant certain kinds of motions that seem compelling. Similarly, lawyers might pursue successful strategies that rules seem to foreclose, and judges might innovate in ways that rules do not contemplate. The student then asks how lawyers are supposed to know when to take rules and doctrines at face value, and when to surmise that atextual norms will supersede. Answering that query about the relationship between procedural law and procedural norms requires wading into murky waters.
Diego Zambrano navigates the murky intersection between law and norms in his forthcoming article, The Unwritten Norms of Civil Procedure. He contends that civil procedure scholars have not embraced a central insight of the law and society literature as systematically as scholars in other fields. That literature has repeatedly demonstrated that atextual norms can cause law in action to diverge from law on the books. Although civil procedure scholars have developed this insight in many specific contexts, they have not created what Zambrano calls a “trans-procedural” account of norms that aggregates lessons from distinct contexts. Zambrano’s article explains why a trans-procedural account would help scholars describe civil procedure more accurately and reform it more effectively.
Zambrano begins by defining procedural norms and explaining how they form and persist. In his parlance, procedural norms are “informal patterns of behavior or practices among litigation actors.” These norms are insufficiently rooted in authoritative sources to be “law.” But they are insufficiently abstract to be “values.” They thrive because judges and lawyers operate within close-knit communities and seek respect from peers. In this cloistered environment, a “sense of obligation” and a fear of “social sanctions” are mutually reinforcing. Judges and lawyers want to emulate influential innovators and avoid being perceived as troublesome outliers. These repeat players therefore create, internalize, and enforce procedural norms. In effect, judges and lawyers inhabit a web of expectations in which they are both the spider and the prey.
The article’s abstract sociological account of procedural norms frames a concrete discussion of how norms operate in practice. Zambrano analyzes several archetypes to illustrate the diverse functions that procedural norms serve. Some norms permeate all aspects of decisionmaking by defining basic goals of litigation. An example is a norm positing that “an MDL resolution that does not fully end the case is a failure.” Judges who adhere to this norm feel pressure to bend—and possibly break—the FRCP to promote a global settlement. In contrast, some norms apply only to narrow questions and encourage courts to limit rather than expand their authority. These limits animate the norm against granting Rule 11 sanctions even when a party’s conduct seems to merit punishment–Zambrano contends this explains why judges imposed sanctions on 2020 election deniers less swiftly than lay commentators anticipated. Unlike the foregoing norms imposed by judges, some norms emerge from decisions by lawyers. For example, structures have evolved for managing cooperation among co-counsel in multi-party litigation.
Although influential ideas can propagate among repeat players, collective action problems can obstruct the process of innovation and replication. An external nudge might therefore be necessary to generate ideas capable of becoming norms. Zambrano observes that norm entrepreneurs can provide this nudge by bringing stakeholders together to identify best practices that evolve into norms. An example is the Sedona Principles of e-discovery, which emerged from a collaborative process consciously designed to influence judges and lawyers.
Zambrano’s descriptive explanation of norms informs his prescriptive suggestions for “harness[ing] the benefits of norms while decreasing their costs.” The potential benefits of norms are tantalizing. Norms can enable a well-informed community of experts to address challenges more effectively than is possible through the formal lawmaking process. But informality has a dark side. Norms can subvert legal entitlements and prioritize the preferences of unaccountable elites. Zambrano responds to these concerns by proposing that scholars identify “design principles” that optimize the content and use of procedural norms. Relevant questions that would influence these principles include: when do norms have a comparative advantage over rules, how can norms effectively incorporate expertise, and how can courts craft experiments that can potentially generate norms?
These norms are especially salient in the present moment. Many commentators have observed that the politicized process for appointing federal judges risks polarizing the judiciary. Political rifts have also fragmented the bar. If procedural norms thrive because judges and lawyers are members of a close-knit community that values reputation, then polarization could undermine norm development. Some judges and lawyers might perceive themselves not as members of a broad community, but as members of a subcommunity with a unique set of priorities. The subcommunity may view adherence to norms as needlessly constraining and view disruption as a virtue. Scholars should therefore consider how to design procedural norms that can survive the fragmentation of professional networks. Going a step further, perhaps new procedural norms can directly combat polarization. For example, judges may develop a norm that high-stakes litigation should not occur in single-judge divisions when there is evidence of forum shopping. Similarly, a norm might encourage restraint when deciding whether injunctions against government programs should extend to nonparties.
Zambrano has shown that procedural norms are ubiquitous, tenacious, and consequential. His nuanced analysis will help scholars craft more precise descriptions of civil procedure and more potent prescriptions for change.
