Close Enough for Government Work: The Committee Rulemaking Game

Abstract

Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game - advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court - are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress would prefer in a world without transaction costs. The Article presents two real-world examples of possible transaction-cost arbitrage, one involving the 1993 adoption of the 'initial disclosures' requirement under the Federal Rules of Civil Procedure, and one involving the implementation of the 'means test' requirement of the 2005 bankruptcy reform statute. Though the normative implications of committee rulemaking are ambiguous, the dynamics of the game suggest that a better preference fit between Congress and the membership of the various advisory committees would mitigate the risks of transaction cost arbitrage substantially while retaining most of the advantages of the committee rulemaking system.