How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process

16 Pages Posted: 15 Feb 2015  

Suja A. Thomas

University of Illinois College of Law

Dawson Price

Private Practice

Date Written: February 10, 2015

Abstract

Commentators have criticized the rulemaking process for decades. Legal scholarship has focused primarily on challenging its constitutionality, questioning whether different actors make better rulemakers, and arguing that some entities have too much power and others have too little. Other commentators have focused on the tools that should be employed by rulemakers when evaluating proposals, focusing on the importance of empirical studies to support rule changes and the role of bias in the formulation of certain rules. In this symposium article, we add to this scholarship by arguing that advisory committees should refrain from proposing and adopting rule amendments that are motivated by atypical cases. Such rules will also affect typical cases, creating bad law for typical cases because the rules were not formulated for such cases. The article describes the thesis of a previous article on how atypical cases make bad law and applies the framework to a current amendment to change the scope of discovery, showing atypical cases make bad rules.

Keywords: discovery, advisory committee, rules, rules enabling act, rulemaking, amendments, proportional, proportionality, 26(b)(1)

Suggested Citation

Thomas, Suja A. and Price, Dawson, How Atypical Cases Make Bad Rules: A Commentary on the Rulemaking Process (February 10, 2015). Nevada Law Journal, Vol. 15, 2014-15. Available at SSRN: https://ssrn.com/abstract=2563047

Suja A. Thomas (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Dawson Price

Private Practice ( email )

Chicago, IL
United States

Paper statistics

Downloads
110
Rank
205,817
Abstract Views
589