The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal Judges' Standing Orders
An interesting new article on this subject (Standing Orders: A Survey of Individual Judges' Regulation of Practice in All Future Cases Before Them) by Judge J. Campbell Barker (E.D. Tex.), and on how this common and important (but largely unstudied) practice sits uneasily with the uniformity contemplated by various federal rules. Some recommendations:
- District courts may wish to consider the wisdom of allowing individual judges to regulate practice in any manner, "[n]otwithstanding the local civil rules." Federal Rule of Civil Procedure 83(b) provides that individual judges may regulate practice in any manner "consistent with … the district's local rules." Federal Rule of Criminal Procedure 57(b) provides the same. That at least suggests the inverse, that judges may not regulate practice in a manner inconsistent with the district's local rules….
- District courts may wish to implement a formal procedure for "reviewing single-judge standing orders," as encouraged by the rules advisory committee. Some JSOs may warrant consideration for inclusion in the district's local rules….
- Judges may wish to consider the benefits and drawbacks of regulating practice through case-management orders posted to the docket automatically at the beginning of a case as opposed to standing orders posted online. That would ensure docketed notice to the parties and archival for any appellate review. It could also reduce a litigant's hesitation to ask the judge to modify a standing order based on the needs of a particular case….
- If a judge is considering reprimanding, sanctioning, or adversely affecting a party for noncompliance with a judge-specific standing order posted online, the judge should consider whether notice of the JSO was provided in the particular case, as by service of the JSO or the JSO's entry on the docket….
A final reflection is prosaic: Our judicial system is structurally incompatible with full uniformity in federal practice and procedure. The federal judicial system empowers over 600 district judges to decide for themselves how to balance the need for standing regulations of practice and the goal of simplicity of federal procedure. Unsurprisingly, there is great variation in how that balance is drawn.
The finding that over 70% of active-status district judges use JSOs suggests that district judges, as a group, are far from convinced of the relative value of goals previously expressed by congressional and national judiciary committees—that lawyers can go to any federal court in the nation and expect much the same required procedure under local requirements that are few and simple. It appears that, today, a more widespread emphasis is on the goal of announcing the procedures that individual judges find most beneficial. That may say something about the relative popularity of judges moving in a group as opposed to expressing individual will.
That emphasis may also reflect our era of widespread, online how-to guides, which district judges may seek to offer in an attempt to help practitioners or promote transparency about typical practices. When those guides take the form of mandatory orders, however, judges may wish to weigh their benefits against the burdens of finding and adhering to a range of online directions.
