The Continuing Gloom about Federal Judicial Rulemaking

By Freer, Richard D. | Northwestern University Law Review, April 1, 2013 | Go to article overview
Save to active project

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Continuing Gloom about Federal Judicial Rulemaking


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?