THE FEDERAL COURTS' RULEMAKING BUFFER.

• Author: Singer, Jordan M.

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.

Viewing court-centered rulemaking as a strategic buffer sheds light on two otherwise puzzling facts about the rulemaking process. First, it helps explain why an efficiency-driven, counter-majoritarian, adjudication-centered entity such as the federal court system chooses to engage in a time-consuming, quasi-democratic, and policy-driven activity such as procedural rulemaking. The disconnect between the demands of rulemaking and the traditional expertise of the court system could not be more evident: rulemaking is deliberately slow, forward-looking, and substantively flexible, while traditional adjudication prizes efficiency, adherence to historical facts, and substantive consistency. (7) Yet the rulemaking buffer has proven to be so strategically important to the court system as an organization that it is willing to sublimate some of its core traditions and practices to maintain control over the rulemaking process. (8)

The buffering perspective also helps explain why the court system has allowed (and even encouraged) court-centered rulemaking to become progressively complex and hierarchical over time. Nearly all organizations prefer to operate their buffers privately and under strong internal supervision in order to maximize efficiency and minimize external interference. (9) But organizations with a strong public character, such as the federal court system, must also be sufficiently transparent about their procedures to preserve their legitimacy with the public. (10) To view rulemaking as a buffer is to witness fully the tension between openness and control that pervades the federal court system's internal operations. The evolution of court-centered rulemaking, from the private deliberations of an elite group of lawyers in the 1930s to the far more complex and open process we see today, reflects the federal court system's ongoing effort to find the right balance. (11)

More broadly, the buffering perspective sees the federal court system--not individual rulemakers, judges, or lobbyists--as the chief protagonist in the rulemaking process. To date, this view has been largely neglected. Committee- or judge-level analyses of rulemaking are surely important and add much to our understanding of group dynamics and rule interpretation. But only the organizational view can meaningfully situate the rulemaking process within the federal court system's broader ambitions.

In light of these benefits, this Article examines the extent of court-centered rulemaking's buffering power, and analyzes the tactics that the federal court system has used to develop and strengthen that power, with a particular focus on the civil rulemaking process. Part I describes the organizational nature of the federal court system, identifies the pressures posed by the court system's external environment, and introduces more fully the concept of court-centered rulemaking as an organizational buffer. Part II situates the federal court system's campaign to obtain rulemaking authority in the 1920s and 1930s within a larger strategy to manage its resource dependence and increase its organizational autonomy. Part III explains how environmental pressure since the passage of the Rules Enabling Act caused the court system to gradually convert court-centered rulemaking from a simply configured, internal process in the 1940s to one that is structurally complex, hierarchical, and public today. Part IV looks to current environmental conditions that might pressure the federal court system to alter its formal rulemaking structure yet again, and examines how the court system is likely to respond.

1. THE STRATEGIC ROLE OF RULEMAKING

   Court-centered rulemaking generally, and federal civil rulemaking in particular, can be understood as an organizational coping strategy. (12) The federal court system relies on external actors for key resources, among them funding, staffing, jurisdictional authority, public legitimacy, and disputes requiring resolution. These resources are not guaranteed, and their availability can fluctuate. (13) A drop in funding, a surge in federal filings, or a spate of unfilled judicial vacancies can strain federal dockets, compromising efficiency and even threatening the basic administration of justice.

   The court system cannot directly control much of this resource variability, but it can try to manage its ebbs and flows. Rulemaking is one of these management tools. By controlling the development of procedural rules, the federal court system can implement downstream measures to control its docket--for example, by loosening or tightening requirements for dismissal; by increasing judicial discretion in areas such as joinder, consolidation, or discovery; or through the use of alternative dispute resolution. (14) This Part explores the federal court system's resource dependence in an organizational context, looking first at the characteristics that define the federal courts as an organization, and then at the individuals and entities outside the federal court system that influence its behavior.

   1. The Court System's Technical Core

      Howard Aldrich has proposed a general definition of organizations as "goal-directed, boundary-maintaining, activity systems." (15) Organizations are goal-directed in that their members believe they are engaged in a common goal or task, as opposed to merely interacting socially. (16) They are boundary-maintaining in that they distinguish between members and nonmembers: some people may participate in the activities of the organization, and some are excluded. (17) And they are activity systems in that the roles of organizational members, and the relationships between those roles, are structured by the organization's activities. (18)

      The federal court system embodies each of these characteristics. Broadly speaking, its goal is to provide a fair and efficient forum for the resolution of disputes commensurate with its constitutional and statutory obligations. Its primary activity for achieving this goal--what we might call the court system's technology (19)--is processing cases to resolution. (20) And its boundaries are defined by behaviors that specifically relate to that technology. Attorneys, for example, act within the court system's boundaries when they present disputes for adjudication according to court rules and customs, and they act outside those boundaries when they seek...