NewYorkUniversity
LawReview

Author

Daniel W. Bernal

Results

Tailored Procedures

Daniel W. Bernal

Over the last few decades, uniform rules have come to govern only a fraction of cases in state courts. Instead, pleading standards vary by case type, discovery limits hinge on amount in controversy, and rules !ex based on party type, representation status, and other factors. Quietly, tailored procedures have come to dominate state court civil litigation, impacting millions of cases each year—from consumer debt to personal injury to complex commercial.

This Article analyzes the rise of tailored procedures in state courts and the implications for access to justice, separation of powers, and court legitimacy. Through a case study of Arizona’s procedural evolution that draws on an original dataset of over 6,600 administrative and rulemaking orders, I trace how such tailoring developed, create a typology that can serve as a menu of design options for courts, and evaluate tailoring’s tradeoffs. Without transsubstantivity as a rulemaking backstop in state courts, I also propose three new safeguards to ensure that tailored rules maximize benefits and minimize harms: proportional design, reason-giving, and iterative review.

Tailoring, however, is about more than just gains and losses in fairness or accuracy. It is about a profound shift in who makes procedure and the goals it might achieve. As state courts have centralized authority and expanded their use of tailoring, they have displaced local rulemaking and narrowed judicial discretion. As rulemakers have grown more ambitious, they have expanded the values that procedure has traditionally advanced. These shifts raise important questions about who should make what procedure, the relationship between procedure and substance, and the role of courts in society.