My goal in this short Essay is to describe the way that inherent power is understood and applied within our procedural framework, and to suggest the need for a more robust account of the contemporary relationship between inherent power and formal procedural rules. Part I describes two roles – one legitimate and one not – that inherent power can play vis-à-vis the rules. Part II examines how those roles are often confused or manipulated, with the result that inherent power remains available to justify judicial action in an undesirably large class of cases. Finally, Part III explores ways to clarify the relationship between rules and inherent power. Although this clarification could be accomplished through a shift in judicial practice, a preferable approach would be to seek an amendment to the rules themselves that would better articulate their intended scope. Such an amendment would make it easier for lawyers to predict the procedural requirements that may actually be imposed in a given case, and would ultimately further civil justice reform by making the rules – and thus the rulemaking process – more meaningful.
Jordan, Samuel P., Situating Inherent Power within a Rules Regime (April 7, 2010). Denver University Law Review, Forthcoming; Saint Louis U. Legal Studies Research Paper No. 2010-04.