Publication Date



Parties to litigation expect courts to operate both
predictably and fairly. A core part of this expectation is
the presence of codified rules of procedure, which ensure
fairness while constraining, and making more
predictable, the ebb and flow of litigation.
Within the courts of this country, however, there is a
font of authority over procedure that courts often turn to
in circumstances when they claim that there is no
written guidance. This authority, referred to as the
“inherent” or “supervisory” power of courts, is an almost
pure expression of a court’s exercise of discretion in that
it gives courts the ability to do “all things reasonably
necessary” for the administration of justice. The
sweeping nature of this power requires us to examine the
role of discretion in courts’ decisions and to ask whether
procedural goals of fairness, notice, and predictability
can be met in circumstances when courts rely on their
inherent powers. As a first step in this examination, this
Article begins by considering and characterizing the use
of inherent power by both federal and state courts, as
well as its roots in common law judicial authority.
While the unconstrained exercise of inherent power is
ever-less acceptable in a legal system that is increasingly
moving toward written rules, the absence of such
authority would present its own difficulties. This Article
therefore concludes by suggesting that although courts
should not be barred from using their inherent power,
they should do so only after making two explicit
findings: (1) why inherent power should be exercised,
particularly in light of relevant positive law, and

(2) what standards the court will use to determine
whether to apply that power in a given case. Through
these findings on whether and how the inherent power
should be used, lower courts retain the procedural
flexibility of inherent power while being discouraged
from its unconstrained use. At the same time, appellate
courts are given the tools they need to fully test the proper
application of this otherwise sweeping power in future