Reform through Rulemaking?

Abstract

Perhaps the pervasive and longstanding effect of the original Rules resulted from the intellectual capacity and fortitude of the federal rulemakers themselves. Charles Clark, at least, implied that self-confidence was central to the drafting effort he led as Reporter to the committee that produced the original Federal Rules when he urged that “reformers must follow their dream and leave compromises to others.” It is difficult to find similar confidence welling in the hearts of contemporary rulemakers. It is particularly difficult to find any enthusiasm for any undertaking that might be deemed “revolutionary,” or perhaps even aggressive.

To the contrary, what one hears about rulemaking is that it is caught in a period of crisis. Reflecting on recent reform efforts, this paper therefore evaluates the prospects for future reform from this quarter. It begins by invoking three perspectives that might inform that inquiry and then elaborates on various themes of crisis that have been heard over the past twenty years. Against that background, it examines some features and episodes of recent rulemaking, partly from the perspective of an insider. Despite the pervasive and valid concerns about a crisis in rulemaking, it concludes that some modest reform is possible, and that rulemaking's inability to deliver revolutionary change may not be a bad thing. Indeed, it may be that the latitude accorded the giants of rulemaking was something of an anomaly in American legal history.