Local Rules

*Zachary D. Clopton, Interim Dean and Daniel Hale Williams Professor, Northwestern Pritzker School of Law. Marin K. Levy, Melvin Shimm Distinguished Professor, Duke University School of Law. We are indebted to our anonymous interview subjects for their time and thoughtful answers to our questions. Thank you for insightful feedback to Will Baude, Andrew Bradt, Maureen Carroll, Kevin Clermont, Seth Endo, Maggie Gardner, Alexandra Lahav, Dave Marcus, Jonathan Nash, Jonathan Petkun, James Pfander, Caprice Roberts, Adam Steinman, Elizabeth Lee Thompson, Patrick Woolley, and participants in the Civil Procedure Workshop and faculty workshops at Duke Law School, Northwestern Pritzker School of Law, University of Richmond School of Law, and University of Southern California Gould School of Law. Thank you for superb research assistance to Sarah Reiss, Jackson Roberg-Crane, Simone Stover, and Michael Volkert, Jr., and thank you for superb editorial assistance to the editors of the Virginia Law Review. Any errors are our own. The views expressed in this Article do not reflect the views of the Advisory Committee on Civil Rules, of which Professor Clopton is a member. Show More

Federal courts have been making their own rules—“local rules”—since the First Judiciary Act. These rules, which operate alongside the Federal Rules, govern all aspects of the litigation process, from the initial filing and case assignment in the district court to the type of disposition of an appeal at the court of appeals. Yet despite their long history, their wide scope, and their deep importance, local rules have not been the subject of scholarly attention for years.

This Article offers the most comprehensive study of local rules to date. It provides an overview of the thousands of rules of the ninety-four district courts and the thirteen courts of appeals, and a report of more than fifty interviews with judges, attorneys, court staff, and academics involved in federal and local rulemaking. It also provides a typology of those rules and a deep dive into their purposes, which include accounting for local needs, providing laboratories of experimentation for federal rules, and offering ways to attract (and even repel) litigation.

Normatively, this Article connects the proliferation of local rules to larger questions within our federal court system. This Article suggests that at least some local variation is inevitable, and so local rules should be understood as one way to express that variation—though not the only way. Local variation can be subjected to a regularized and public process that produces transparent local rules, or it can be pushed down to less systematic standing orders, individual judge practices, and unwritten norms that may favor the local bar. But this is not to say that local rules are all to the good: local rules create problems when they contradict or duplicate federal rules, when they place an unnecessary tax on practitioners, and when they create opportunities for forum shopping and forum selling. Local rules may be inevitable, but they are not infallible—this Article seeks to understand and improve them.

Introduction

The Federal Rules of Civil Procedure are 121 pages.¹ 1.We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025).Show More The Federal Rules of Appellate Procedure are 65 pages.² 2.Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025).Show More These rules answer many questions about procedure in federal court, but no one who has even a passing acquaintance with federal practice believes they answer every such question. The rules themselves admit as much. Civil Rule 83 and Appellate Rule 47, building on acts of Congress, expressly authorize federal courts to adopt local rules.³ 3.Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking).Show More And in dozens of places, the Federal Rules explicitly or implicitly invite lower courts to develop local rules to supplement, elaborate upon, or depart from the Federal Rules.⁴ 4.See infra Part II.Show More

Over the years, the United States district and circuit courts have issued thousands of local rules, including rules on many topics left wholly unaddressed by the Federal Rules. Some might think that local rules cover only small details—the “housekeeping”⁵ 5.Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990).Show More of the federal courts. And it is true that some can feel rather trifling. To take one example, the U.S. Court of Appeals for the Second Circuit’s Local Rule 31.1 states that “[i]n all cases, a party must submit 6 paper copies of each brief”—full stop.⁶ 6.2d Cir. R. 31.1.Show More To take another, Local Civil Rule 1.2 of the U.S. District Courts for the Southern and Eastern Districts of New York specifies that a “night depository with an automatic date stamp [shall] be maintained by the clerk of the Southern District in the Pearl Street Courthouse and by the clerk of the Eastern District in the Brooklyn and Central Islip Courthouses.”⁷ 7.S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4).Show More

But, as it turns out, local rules also cover significant topics in myriad ways. Historically, debates over civil juries have at times sounded in local rulemaking.⁸ 8.See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts).Show More Today, fights about case assignment invoke questions about local rules. Judge-shopping, such as the State of Texas’s preternatural ability to end up in front of Judge Matthew Kacsmaryk in recent years, is a practice permitted in many district courts because of local rules on case assignments.⁹ 9.See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024).Show More Rules to channel “related cases” to certain district judges, potentially manipulated in the stop-and-frisk litigation, are creatures of local rules, too.¹⁰ 10.See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules).Show More And there’s more. The Eastern District of Virginia gets its reputation as the “rocket docket” in part because of its highly aggressive local rules.¹¹ 11.See infra Subsection II.A.1.Show More For those interested in access to justice, there are roughly five hundred local rules related to pro se litigants in district courts, including ten districts with separate sections of their local rules addressing unrepresented litigants.¹² 12.Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022).Show More Consequential rules about class actions, summary judgment, and corporate disclosures are found in local rules as well.¹³ 13.See infra Section II.A; infra Subsection III.B.4.Show More Meanwhile, in the courts of appeals, practices related to the use of “unpublished” (or non-precedential) opinions¹⁴ 14.See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020).Show More—a sensitive subject over the years—are mostly left unregulated by the Federal Rules of Appellate Procedure.¹⁵ 15.See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions).Show More Instead, it is within many of the local rules that one can find details about when the appellate courts think an opinion should be “published” or not, and who can be part of that decision-making process.¹⁶ 16.See infra Subsection II.A.2.Show More The same is true of other key moments in appellate litigation, including when briefs should be filed, when there should be oral argument, and when courts should rehear cases en banc.¹⁷ 17.See infra Subsection II.A.2.Show More

Despite their importance, there has not been sustained scholarly attention on local rules.¹⁸ 18.See infra note 20 (collecting sources, the most recent of which was published in 2015).Show More Much like local rules themselves, then, this Article seeks to fill gaps in, elaborate upon, and address previously unaddressed topics in the literature. We show in this Article that national and local rulemaking, like other systems of federalism, must accommodate national and local interests. And they typically do so, not by allowing one side to completely run over the other, but instead in a more grounded process that ebbs and flows over time. As in federalism, we can observe conflict and cooperation, though perhaps the most common outcome is somewhere in between. And this observation informs our normative judgments about local rules serving important functions in the middle layer between federal rules and individual judge practices.

To better understand local rules, Part I begins with a brief review of their history, starting at the beginning of the federal courts themselves and taking us to the present day. Part II then aims to provide an overview of what the thousands of local rules contain. Having surveyed these rules ourselves, we provide a descriptive account of the topics included in the local rules for the district and appellate courts. Many local rules exist within the federal rules—that is, they address topics also addressed at the national level, such as discovery, case management, and briefing. Others, though, are “outside” the federal rules. We identified and cataloged 1,089 civil district rules and 70 appellate rules of this type, addressing issues such as the regulation of the bar and the administration of the court. We then conclude Part II with a different way of understanding the content of local rules, by providing a taxonomy of local rules as they relate to federal rules. One distinction just mentioned is between rules inside and outside the federal rules. But there is further variation among local rules inside the federal rules: local rules can elaborate or build upon federal rules, and they can respond to federal rules that invite opt-outs or that create a floor or ceiling. Perhaps most surprisingly of all, local rules can contradict or duplicate federal rules.

Part III then considers the purposes of local rules. This work is informed not only by our review of thousands of local rules, but also by dozens of interviews with people involved in federal and local rulemaking. Specifically, we have conducted over fifty semi-structured interviews with judges, attorneys, law professors, and court personnel—making this the largest qualitative study on local rules to date. Our subjects include chairs, reporters, and members of the federal rulemaking committees, as well as chairs and members of local rules committees. These interviews helped us identify and distill several functions behind local rules, including a way to account for local needs and culture, a way to unify and codify judges’ practices, an opportunity to have laboratories of experimentation, and a means to attract and repel certain kinds of litigation.

Part IV then analyzes the findings of our study. We offer some observations about how well the purposes of local rules align with reality, and we suggest ways that local and federal rulemakers can do better. We argue that many of the key tensions within a federal system are alive and well within rulemaking, and it is a fool’s errand to try to formulate hard and fast rules about where there should be uniformity and where variation should be permitted. That said, we must acknowledge that the inter-court variation that comes from local rules is a tax on practitioners—and it is a tax that is not offset by conformity to state practice, which was uniformly rejected as a goal by the rulemakers we interviewed. But we also suggest that local rules must be viewed against a backdrop of local (and even judge-specific) procedures that will produce dis-uniformity whether a district adopts formal local rules or not. If local variation is inevitable, then local rules are perhaps the best way to make that variation transparent and open to outsiders. We also echo longstanding concerns about inconsistency and duplication, and we problematize claims of local needs and experimentation.¹⁹ 19.We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026).Show More

In sum, this Article aims to shed light on the rules that are playing an important role in governing litigation in the federal system and on the tradeoffs being made between uniformity and “local interests” that have brought us here.

1.  We rely here on the version of the Federal Rules of Civil Procedure posted on the United States Courts website, https://www.uscourts.gov/rules-policies/current-rules-practice-proced‌ure/federal-rules-civil-procedure [https://perma.cc/76DE-SCGG] (last visited May 30, 2025). ↑
2.  Federal Rules of Appellate Procedure, Admin. Off. of the U.S. Cts., https://www.uscourts.‌gov/rules-policies/current-rules-practice-procedure/federal-rules-appellate-procedure [https:/‌/perma.cc/Y3J9-BMWP] (last visited May 30, 2025). ↑
3.  Fed. R. Civ. P. 83; Fed. R. App. P. 47; see also infra Part I (describing the origin of local rulemaking). ↑
4.  See infra Part II. ↑
5.  Judith Resnik, Housekeeping: The Nature and Allocation of Work in Federal Trial Courts, 24 Ga. L. Rev. 909, 913–15 (1990). ↑
6.  2d Cir. R. 31.1. ↑
7.  S.D. & E.D.N.Y. Loc. Civ. R. 1.2. One more example because we know that lawyers love fonts: a local rule from the Southern District of West Virginia requires motions and memoranda to be “clearly legible” and provides that “[t]he following fonts are presumed legible: Times New Roman, Courier New, Arial, Century Gothic, Garamond, Georgia, and Century Schoolbook.” S.D. W. Va. LR Civ P 7.1(a)(4). ↑
8.  See, e.g., Colgrove v. Battin, 413 U.S. 149, 150 n.1 (1973) (discussing Montana Local Rule 13(d)(1), which the Court observed was similar in substance to the local rules of fifty-four other federal district courts). ↑
9.  See Michael Hiltzik, Courts Finally Move to End Right-Wing Judge Shopping, But the Damage May Already Be Done, L.A. Times (Mar. 18, 2024, 2:11 PM), https://www.latimes.c‌om/business/story/2024-03-18/federal-courts-finally-put-the-kibosh-on-right-wing-judge-sho‌pping-but-the-damage-is-already-done; Alex Botoman, Note, Divisional Judge-Shopping, 49 Colum. Hum. Rts. L. Rev. 297, 308–21 (2018); Katherine A. Macfarlane, Constitutional Case Assignment, 102 N.C. L. Rev. 977, 981–82, 1005–11 (2024). ↑
10.  See Marcel Kahan & Troy A. McKenzie, Judge Shopping, 13 J. Legal Analysis 341, 346, 358 n.29 (2021) (finding forty-six federal district courts with local related-case rules). ↑
11.  See infra Subsection II.A.1. ↑
12.  Andrew Hammond, The Federal Rules of Pro Se Procedure, 90 Fordham L. Rev. 2689, 2691–92, 2705 (2022). ↑
13.  See infra Section II.A; infra Subsection III.B.4. ↑
14.  See, e.g., Merritt E. McAlister, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, 118 Mich. L. Rev. 533, 535–36, 535 n.8 (2020). ↑
15.  See Fed. R. App. P. 32.1(a) (simply permitting citation to unpublished opinions). ↑
16.  See infra Subsection II.A.2. ↑
17.  See infra Subsection II.A.2. ↑
18.  See infra note 20 (collecting sources, the most recent of which was published in 2015). ↑

19.  We reserve for future work equally important questions about the process of making local rules, including a comprehensive study of the rulemaking apparatus of every district and circuit court as well as a mapping of the information flows among local and federal rulemakers. See generally Zachary D. Clopton & Marin K. Levy, Local Rulemaking, 75 Duke L.J. (forthcoming Feb. 2026). ↑