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 rulemaking, 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 opportunity 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 of judicial rulemaking authority, which are then reviewed by the very courts that issued them in the first instance, and the claims of actual bias, the appearance of partiality, or both that can result. It argues that it is improper for a judge who participated in promulgating a local rule to sit in judgment over the validity of that rule when it is challenged in a specific case after adoption because the process by which many of these local court rules are issued gives rise to a structural conflict of interest in having any judge of the promulgating district review a challenge to the promulgation and enforcement thereof. It also notes that there is little case law governing who has standing to challenge court rules or the scope or standard of a court’s review of a court-created rule. Part VI concludes that, in enacting arguably substantive local rules, federal courts are exercising powers constitutionally committed to Congress and, in doing so, impeding sufficient independent review of such exercises and creating a diffusion of rulemaking responsibility.
Watching the Hen House: Judicial Rulemaking and Judicial Review,
91 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol91/iss1/4