Watching the Hen House: Judicial Rulemaking and Judicial Review

• Publication year: 2021

91 Nebraska L. Rev. 72. Watching the Hen House: Judicial Rulemaking and Judicial Review

Watching the Hen House: Judicial Rulemaking and Judicial Review

Carrie Leonetti(fn*)

TABLE OF CONTENTS

I. Introduction.......................................... 72

II. The Increasing Prevalence of Judicial Rulemaking..... 80

III.Governing Standards.................................. 84
A. The Rulemaking Authority of Federal Courts ...... 84
1. The REA and the Federal Rules of Procedure ........................................... 87
2. Inherent Rulemaking Authority................89
3. Defining Procedural ...........................94
4. Cases and Controversies .......................98
B. Statutory and Due Process Requirements of Notice and Comment ..................................... 99

IV. Case Study: Courtroom Security....................... 102

V. The Problem.......................................... 105
A. Judicial Legislation Subject to Judicial Review ..... 108
B. Bias, the Appearance of Partiality, and Recusal .... 110

C. Standing, Scope, and Standard of Review.......... 116

VI. Conclusion ............................................ 118

"Federal states distinguish between ordinary political action, which takes place within the existing framework of political institutions, and political action which changes that very framework."(fn1)

I. INTRODUCTION

Congress has historically delegated its procedural rulemaking authority to the courts.(fn2) As a result, part of federal judges' responsibili-

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ties is to adopt internal administrative rules for the effective functioning of their courts. This delegation doctrine, however, says nothing about the allocation of rulemaking authority with reference to exercise of the delegation, particularly with reference to rule content. As a result, much has been written on the constitutionally permissible scope of this judicial rulemaking.

Much of this scholarly literature deals with either which entity (Congress or the courts) should have ultimate control over judicial practice and procedure(fn3) or how far courts may go in exercising non-

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traditional court functions, such as budgeting, under the doctrine of inherent powers.(fn4) Challenges to court-made rules typically have posed the question whether the judiciary, in promulgating a particular rule, has violated the Rules Enabling Act (REA).(fn5) On the topic of how much of practice and procedure may be considered to be within the inherent powers of the courts, there is a lack of uniformity and consistency in federal-court decisions, as well as a lack of literature that is national in scope.(fn6)

"[J]udicial interpretations dealing with the separation of powers and rulemaking provision are extremely varied."(fn7) "[T]here is a dearth of controlling authority or guidance at the federal level."(fn8) As Felix Stumpf has explained, despite the extensive exercise of putative inherent rulemaking powers by courts, "learned writers have described the concept as 'shadowy' and 'nebulous,' or as 'a problem of definition that has eluded or bedeviled many courts and commentators for years.'"(fn9)

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A discussion of who decides these questions and how is almost entirely absent from the scholarly literature. The scholarly literature that does address even part of these subjects focuses on the promulgation of the nationwide Federal Rules of Evidence, Civil Procedure, and Criminal Procedure through the committee process that ultimately results in Supreme Court approval and presentment to Congress, not the local rules and general orders that are promulgated far less formally and vary between and among districts.(fn10) It is this morass into which this Article attempts to hurl itself.

Judicial rulemaking invokes many of the same concerns as administrative rulemaking. Article i was structured to discourage factional legislation.(fn11) The framers specifically designed the legislative process to include safeguards against factions, safeguards that judicial rulemaking lacks.(fn12) These safeguards protect not just community

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welfare, but also important constitutional values: electoral accountability and protection of the rights of those who are regulated (those whose liberty and property are affected by court rules).(fn13) Fundamentally, legislators, unlike federal judges, are accountable because their continuance in office depends upon reelection.(fn14)

In comparison, judicial rulemaking vests the power in one institution. It radically reduces the number of individuals involved in adopting procedural rules; none of those individuals (under Article III) are elected or accountable to elected officials for their decisions, and all of them are life tenured,(fn15) dramatically undercutting accountability.(fn16)

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Judges, as a group, are unrepresentative of the population.(fn17) They are insulated from much of the "real world."(fn18) Unlike executive-branch agencies that must follow the rulemaking procedures of the Administrative Procedure Act of 1946 (APA),(fn19) judicial rulemaking is rarely subject to meaningful notice and comment.(fn20) As a result, only a few, if any, interests are heard prior to rule adoption. often the only interests heard from will be from partisan, organized groups within the judicial system, such as law-enforcement agencies or prosecutors' offices.(fn21) Even if citizen organizations become involved, those organizations have the resources to intervene in only a small fraction of all matters that affect their constituencies and likely would not address matters of importance to other citizens.(fn22) in this way, rather than reducing the power of factions by playing them off against one another, judicial rulemaking typically accentuates the power of factions because its processes render judge-rulemakers dependent upon a combination of vested special interest groups and recently graduated law clerks for information and input.(fn23) in sum, judicial rulemaking lacks

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all of the structural features upon which the framers relied to protect against factions.(fn24) In addition, judicial rulemaking can be used to defy or dilute the substantive policy preferences of the legislative and executive branches.(fn25) Unlike when it reviews rulemaking performed by an administrative agency, Congress cannot always simply ratify or overrule judicial rulemaking by statute or foster informed dialogue by forcing the courts to articulate the basis for their rules, because not every exercise of rulemaking authority by a court is an exercise of delegated power.(fn26)

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Two centuries ago, Jeremy Bentham argued that almost everything wrong with procedure could be attributed to "Judge and Com-pany."(fn27) in Bentham's view, judicially created procedure, endemic to the common law, was also its bane, and he attributed all procedural evil to guild self-interest: Judges, former lawyers who consorted with lawyers and who derived income from fees, had created a system benefiting only judges and lawyers. in other words, Bentham viewed procedural rules as professional featherbedding and feared that procedural designers and procedural consumers were too closely joined.(fn28)

The thesis of this Article is a simple one: Courts regularly engage in rulemaking of questionable constitutionality, then exercise the exclusive jurisdiction of judicial review to rule on constitutional challenges to the rules that they themselves have promulgated, obfuscating the appearance of impartiality and accountability and preventing the unsophisticated from realizing that a benefit has been conferred on a more sophisticated faction. Although this Article focuses on the concerns arising from judicial review of judicial rulemak-ing, it includes some observations as to why, as a matter of policy, expansive judicial rulemaking authority itself is concerning. It, therefore, joins the extensive scholarly debate surrounding the relative fairness, competency, and efficiency of the respective branches of government to promulgate procedural rules.

Part II describes the increasing prevalence of quasi-legislative judicial rulemaking that has resulted from Congressional delegations of rulemaking authority to the courts in the past half century, the result of which is a multi-tiered system of consultation, review, and revision that depends heavily upon nonlegislative actors and a Balkanization of the rules of procedure between and among local districts.

Part III outlines the rulemaking authority of the federal courts, which emanates from the REA, the Federal Rules of Criminal and Civil Procedure, the U.S. Constitution, and the "inherent-authority" doctrine. It also traces the major limitations on this power: the prohibition against courts making rules affecting "substantive" matters, the Case and Controversy Clause of Article iii, and the notice and comment requirements of the REA and the Due Process Clause.

Part IV describes a case study in local judicial rulemaking: courtroom-security rules, which are generally promulgated without an op-

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portunity for public notice and comment. Part v describes the problem(s) that this Article seeks to address: the frequent promulgation of local rules governing subject matters that are arguably beyond the scope ofjudicial rulemaking authority, which are then reviewed by the very courts that issued them in the first instance, and the claims of actual...