The Continuing Gloom about Federal Judicial Rulemaking
Freer, Richard D., Northwestern University Law Review
ABSTRACT-In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in "crisis" and its fans are experiencing "malaise." This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development.
These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee's fault. Like the wayward star, it should change, a process that starts by understanding the burdens and costs imposed by every procedural change.
In 2013, the Federal Rules of Civil Procedure (Rules) turn seventy-five years old. Though the Rules themselves have earned their encomia, the process by which they are promulgated under the Rules Enabling Act (REA)1 has been a source of gloom for more than a generation. Reading law review commentary about federal rulemaking is like reading tabloid headlines about a wayward Hollywood star. The favorite word, dating from 1975,2 is "crisis."3 Like the troubled star, the civil rulemaking process has engaged in "irresponsible experiment"4 and occasionally manifests a lack of real-world grounding.5 Its fans suffer "malaise"6 because the process is "in disarray, if not in decline."7 It has lost its influence as a role model,8 is "under siege,"9 and might "go the way of the French aristocracy."10
People are gloomy for different reasons. To some, the problem is that the Supreme Court engages in amendment by case law instead of through the REA process.11 Others cite the "politicization" of the process a generation ago, which took rulemaking out of the hands of elite experts.12 Others believe the process does not take into account the sea change in the nature of litigation from a system based upon adjudication to one based upon settlement.13 Whatever the reasons, the sense of unease is palpable. Even defenders are not enthusiastic. About the best one finds, reflected in the title of an article by Professor Marcus, is that the federal rulemaking process is "Not Dead Yet."14
In my view, the problem is that the process, in the hands of the Advisory Committee on Civil Rules (Committee),15 is all too alive. In the past two decades, the Committee has imposed too much new material to be processed meaningfully or assimilated smoothly. Moreover, that period has brought a new phenomenon: amendments that do nothing but wordsmith.16 So I am gloomy because a Committee well suited to lead and innovate on things that matter-as it did with electronic discovery-leads infrequently and seems to see itself as a platonic arbiter of style. It has lost the opportunity, for example, to lead on the appropriate standard for pleading a claim. Worse yet, I believe, the Committee's hyperactive fiddling has done harm by imposing untoward burdens on bench and bar and expenses on litigants.
In this Article, I discuss some possible explanations for this gloomy state. …