Sometimes the rules let you change the rules. In civil procedure, many rules are famously rigid—for example, neither the parties nor the judge can stipulate to subject matter jurisdiction—but closer inspection yields many ways that judges or parties (individually or by agreement) can change procedural defaults, such as the number of depositions, trial by judge or jury, or sometimes even jurisdiction. Whether the judge or parties have “flexibility” to change the rules of the game is an important, but understudied, aspect of procedure.
This Article is the first to document the full spectrum of procedural flexibility—the varied and sometimes surprising range of ways in which judges and parties can modify procedure in their cases. We show that procedural flexibility spans a broad spectrum from rigid inflexibility, to contracts that modify procedure, to unilateral control over procedure, and beyond, to a new frontier of innovations—buying and selling of procedures between parties in different cases, and markets or auctions for everything from depositions to jury trials. Some of these possibilities seem radical, but we show that, contrary to conventional wisdom, current civil practice already permits similarly radical flexing of procedure.
As a normative matter, we argue that even radical forms of flexibility (like markets in procedure) cannot be ruled out based on familiar normative criteria such as efficient dispute resolution, norm creation, distributive justice, or facilitation of democratic participation in the legal system. To the contrary, such forms of procedural flexibility may offer unexpected avenues for addressing inequities of the current status quo.