The Inherent and Supervisory Power

Parties to litigation expect courts to operate bothpredictably and fairly. A core part of this expectation isthe presence of codified rules of procedure, which ensurefairness while constraining, and making morepredictable, the ebb and flow of litigation.Within the courts of this country, however, there is afont of authority over procedure that courts often turn toin circumstances when they claim that there is nowritten guidance. This authority, referred to as the“inherent” or “supervisory” power of courts, is an almostpure expression of a court’s exercise of discretion in thatit gives courts the ability to do “all things reasonablynecessary” for the administration of justice. Thesweeping nature of this power requires us to examine therole of discretion in courts’ decisions and to ask whetherprocedural goals of fairness, notice, and predictabilitycan be met in circumstances when courts rely on theirinherent powers.

As a first step in this examination, thisArticle begins by considering and characterizing the useof inherent power by both federal and state courts, aswell as its roots in common law judicial authority.While the unconstrained exercise of inherent power isever-less acceptable in a legal system that is increasinglymoving toward written rules, the absence of suchauthority would present its own difficulties. This Articletherefore concludes by suggesting that although courtsshould not be barred from using their inherent power,they should do so only after making two explicitfindings: (1) why inherent power should be exercised,particularly in light of relevant positive law, and (2) what standards the court will use to determinewhether to apply that power in a given case. Throughthese findings on whether and how the inherent powershould be used, lower courts retain the proceduralflexibility of inherent power while being discouragedfrom its unconstrained use. At the same time, appellatecourts are given the tools they need to fully test the properapplication of this otherwise sweeping power in futurecases.