The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy

Georgetown Law Journal, Vol. 87, 1998

Posted: 26 Feb 1999

See all articles by Robert G. Bone

Robert G. Bone

University of Texas School of Law


Since 1934, the United States Supreme Court has had the power to make Federal Rules of Civil Procedure, and it has exercised this power through a committee structure comprised of judges, lawyers and legal academics. Until the 1970s, "court rulemaking" ? as this process is commonly called ? was considered by many to be the optimal method of making procedural rules. In recent decades, however, the traditional court rulemaking model has come under attack. Critics complain about the legitimacy of a politically unaccountable process and the efficacy of the rules such a process creates. Much of this criticism reflects a profound shift in thinking about procedural law. Critics reject the idea that civil process is normatively independent of substance. They argue instead that procedure has substantive effects and involves controversial value choices, and they conclude that rulemaking is necessarily "political" and thus requires greater public and political accountability than the traditional court rulemaking model provides.

This article critically examines these claims and develops a theory of procedural rulemaking that justifies a major role for courts largely free of legislative interference. The article argues that the main features of court rulemaking ? a court-based, committee-centered, and centralized process ? are well suited to making general constitutive rules that define the basic framework of the procedural system and some of the more detailed rules that control costly forms of strategic behavior. More generally, the proper function of court rulemaking is to develop and maintain an integrated system of rules that reflects the best principled account of procedural practice. On this view, the legitimacy of court rulemaking does not depend on public participation or political accountability, but instead on a model of principled deliberation akin to common law reasoning.

After briefly surveying the history of court rulemaking and the decline of the traditional model, the article examines the relationship between procedure and substance at the heart of the modern critique, and evaluates current attempts to justify court rulemaking in the face of that critique. The article then develops a new justification for court rulemaking by analyzing the core features of the traditional model under efficiency, rights-based, and process-based theories of procedural law. The article concludes with some thoughts about the relationship between the Court and Congress under the current Rules Enabling Act.

Suggested Citation

Bone, Robert G., The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy. Georgetown Law Journal, Vol. 87, 1998, Available at SSRN:

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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