The Federal Courts' Rulemaking Buffer

By Singer, Jordan M. | William and Mary Law Review, May 2019 | Go to article overview

The Federal Courts' Rulemaking Buffer


Singer, Jordan M., William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                            2241   I. THE STRATEGIC ROLE OF RULEMAKING                   2244      A. The Court System's Technical Core               2245      B. The Court System's External Environment         2247      C. Rulemaking's Buffering Qualities                2252  II. DEVELOPING THE BUFFER                              2259      A. Taft's Push for Organizational Autonomy         2259      B. A Special Role for Court-Centered Rulemaking    2265 III. MAINTAINING THE BUFFER                             2272      A. Emphasizing Expertise, 1934-1956                2276      B. Looking Inward, 1957-1974                       2280      C. Inviting Public Input, 1975-1994                2287      D. Efficiency Through Decoupling, 1995-2015        2297  IV. THE FUTURE OF THE BUFFER                           2304      A. Skepticism over Rulemaker Neutrality            2305      B. Predicting the Federal Court System's Response  2308 CONCLUSION                                              2309 

INTRODUCTION

For a coequal branch of the most powerful government on the planet, the United States courts operate under a remarkable amount of environmental uncertainty. Almost every critical resource that the courts need to function must be obtained from somewhere else. The courts look to Congress for funding, judgeships, staffing, and jurisdiction; the executive branch for judicial nominations, budgeting input, courthouse security, and enforcement of decrees; the bar for a steady stream of justiciable cases and controversies; the media for dissemination of important messages; and the public for legitimacy. The federal courts depend on these providers to furnish resources not only in adequate amounts but also at predictable rates: the system cannot operate effectively, for example, if the number of incoming cases far exceeds the capacity of its courtrooms or judges.

The court system has a variety of methods for managing this resource dependency. Some strategies are outwardly focused, designed to extract additional support from external resource providers. (1) Other strategies are inwardly focused, designed to restructure the court system from within to help it manage its existing resources more effectively. (2) This Article focuses on one such internal strategy, known as buffering, and one particularly potent form of buffering--the crafting of procedural rules pursuant to the Rules Enabling Act. (3)

A buffer is a structure or process that is placed between an organization's technical core and its external environment to protect the core from disruption. (4) Buffers absorb external shocks (such as changes in the flow of resources or demand for the organization's services) so that the organization's core operations can proceed under relatively stable and predictable conditions. (5) A single organization can use several buffers in combination, (6) and indeed, the process of creating rules of procedure--what I shall call court-centered rulemaking--is but one of many internal buffers developed by the federal court system over the past century.

Court-centered rulemaking's contribution to the federal court system's network of buffers stems from its ability to regulate, in part, the flow of cases into and out of the system. The design of procedural rules can encourage or discourage case filing, make it easier or harder to end a case before trial, authorize greater or lesser expenditure of judicial time and resources, and invest district judges with more or less discretion to manage their individual dockets. Procedural rules, in other words, act as safety valves for the court system, allowing it to absorb an unexpected surge in filings or an unexpected drop in staffing or material resources. The power to make procedural rules lowers the stakes of resource dependence, increasing the court system's overall autonomy and leaving it less susceptible to environmental disturbance. …

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