Unconstitutional Rulemaking: The Civil Justice Rfeorm Act and Separation of Powers

57 Pages Posted: 29 Jan 2013

Date Written: January 1, 1993


The continuing debate over civil justice reform, replete with colorful “lawyer-bashing,” usually focuses on the purported explosion of civil litigation or the venality of American lawyers. Civil justice reform has proven to be such a popular political hobbyhorse that numerous office-holders and candidates made it a central theme of the 1992 electoral campaign. The incessant demands for reform of civil legal services have evolved into a civil justice reform movement characterized by the creation of advisory groups; the production of white papers, reports, and studies; and even executive orders for civil justice reform.

In 1990, Congress responded with the Civil Justice Reform Act. The Act created an advisory rulemaking group for each of the ninety-four federal district courts, and required each group to formulate an expense and delay reduction plan by the end of 1993.

This Article is the conclusion to a piece published earlier in this volume of the Minnesota Law Review. The earlier piece explained that the Civil Justice Reform Act effected a revolutionary redistribution of procedural rulemaking power from the federal judicial branch to the federal legislative branch. It focused on three aspects of the Act.

First, the Civil Justice Reform Act effectively overturns the Rules Enabling Act by the expedient of declaring procedural rules to be substantive law, thus stripping the judicial branch of the power to prescribe internal rules of procedure for the federal courts. Second, the Act violates the separation-of-powers doctrine by arrogating to Congress unprecedented authority over the internal affairs of the judiciary. With inadequate legal and empirical foundation, Congress stripped the judicial branch of its important rulemaking function. Third, the Act constitutes a vast experiment in local rulemaking that undermines the central procedural reformation effected by the promulgation of the Federal Rules of Civil Procedure in 1938. The 1938 procedural reformation embodied the aesthetic that the careful, informed study would lead to the adoption and amendment of simple, uniform procedural rules throughout the federal judicial system.

The reform the Civil Justice Reform Act mandates, however, is not conducive to careful, informed amendment of the Federal Rules of Civil Procedure. Moreover, it is doubtful that the ninety-four local advisory groups will recommend simple, much less uniform, rules. On the contrary, the Civil Justice Reform Act encourages, if not requires, a proliferation of local rules of increasing complexity and specificity. Hence, the Civil Justice Reform Act is actually a counter-reformation of procedural justice.

In sum, the earlier Article argued that the implications of the Civil Justice Reform Act are dramatic, revolutionary, and probably bad. Under the Act, grassroots, amateur local rulemaking groups will recommend problematic local rules, measures, and programs based not on considered contemplative study, but rather on ill-conceived social science, anecdote, and interest-group lobbying. More significantly, the Act will contribute to the increased balkanization of federal civil procedure and transform the reigning procedural aesthetic of simplicity and uniformity into one of increasing complexity and variation.

This Article examines the legal basis for the Civil Justice Reform Act. It concludes that the Act revokes the Rules Enabling Act sub silentio and authorizes unconstitutional rulemaking. Central to this thesis is the argument that the Civil Justice Reform Act violates the separation-of-powers doctrine by substantially impairing the federal courts' inherent Article III power to control their internal process and the conduct of civil litigation. Furthermore, Congress is wrong in declaring-as it does in the legislative history to the Act-that it has exclusive federal rulemaking power. Apart from these objections, the Civil Justice Reform Act ought to be condemned for the pragmatic reason that it will irretrievably politicize federal procedural rulemaking. Whatever legal arguments may be marshalled against the Civil Justice Reform Act, this legislation also embodies deceptively high-minded but nonetheless ill-conceived public policy.

Part I of this Article examines whether the Civil Justice Reform Act violates the separation-of-powers doctrine. It first briefly canvasses the separation-of-powers decisions that deal with executive/legislative and executive/judicial branch conflicts, and concludes that these cases are not particularly useful for evaluating the legislative/judicial branch conflict presented by the Civil Justice Reform Act. This Part explains that the Act poses a boundary question regarding the concurrent exercise of rulemaking powers by two separate branches of our federal government. After determining the possible methodologies a federal court might use in construing the Act's constitutionality, Part I concludes that Congress, through the Civil Justice Reform Act, has violated the separation-of-powers doctrine by exercising authority that is beyond its Article I powers, consequently intruding on powers Article III assigns to the judiciary.

Part II evaluates whether the Civil Justice Reform Act contravenes the Rules Enabling Act. This Part first explores the allocation of rulemaking powers and discusses the historical and doctrinal underpinnings of the substantive/procedural rulemaking distinction embodied in the Rules Enabling Act. The case law construing the Rules Enabling Act provides an in-apt analytical framework for considering the Civil Justice Reform Act because past Rules Enabling Act challenges to court-made rules typically have posed the question whether the judiciary, in promulgating a particular rule, has violated the Rules Enabling Act. The Civil Justice Reform Act, in contrast, poses the obverse issue: whether Congress, in enacting this legislation, has transgressed its own Rules Enabling Act. Part II also discusses the implications for procedural rulemaking of Congress's 1988 amendment to the Rules Enabling Act, and concludes that, notwithstanding Congress's requirement of a more open process, the Rules Enabling Act still allocates procedural rulemaking power to the judicial branch.

Finally, Part II argues that the Senate's interpretation of the Rules Enabling Act has inverted the usual understanding of that Act and has transformed it from enabling legislation to disabling legislation. In so doing, Congress has committed two dangerous offenses: it has stripped the courts of their traditional procedural rulemaking authority, and it has changed procedural rules into substantive provisions. Thus the Civil Justice Reform Act shifts the locus of rulemaking authority away from the federal courts, where it always has been exercised, and relocates it in Congress-a branch ill-suited to judicial rulemaking. The Article closes with the author's repeated refrain that procedural rulemaking ought not to be a matter of majoritarian legislative public policy.

Keywords: Civil Justice Reform Act, Article III, separation of powers doctrine, Rules Enabling Act, constitutional allocation of powers, rulemaking authority

Suggested Citation

Mullenix, Linda S., Unconstitutional Rulemaking: The Civil Justice Rfeorm Act and Separation of Powers (January 1, 1993). 77 Minn. L. Rev. 1283 (1993), U of Texas Law, Public Law Research Paper No. 291, Available at SSRN: https://ssrn.com/abstract=2208207

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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