The Continuing Gloom About Federal Judicial Rulemaking

Abstract:     
In 2013, the Federal Rules of Civil Procedure will be 75 years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in "crisis" and its fans are experiencing "malaise." This paper addresses the reasons for that gloom and concludes that some level of "crisis" is inevitable. At the macro level, judicial rulemaking is a legislative function being performed by an unelected body which is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development.

These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. It has become less an Advisory Committee than a Strunk & White Committee. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee's fault. Like the wayward star, it should change its ways, a process that starts by understanding the burdens and costs imposed by every procedural change.

This paper is a contribution to a festschrift in honor of Professor Martin H. Redish.

Number of Pages in PDF File: 23

Keywords: rulemaking, federal rules, separation of powers

JEL Classification: K10, K19, K40, K49

Accepted Paper Series