Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking


Linda S Mullenix

69 North Carolina Law Review 701


Within the next few years, the Advisory Committee on Civil Rules will revise several provisions of the existing formal discovery rules, and probably will propose a new informal discovery rule. The purpose of these amendments is to address once again the problems of discovery abuse by reducing the need and expense of formal discovery. The professional torpor in the civil rulemaking process is now about to change. In 1988 Congress passed the Judicial Improvements and Access to Justice Act, an omnibus bill incorporating numerous modifications into the procedural rules.

One of the reforms in this legislation is a provision permitting greater public access to the civil rulemaking processes of the Advisory Committees. In essence, what previously had gone on behind closed doors is now open to enhanced public participation and scrutiny at the earliest stages of judicial rule formation. Participatory democracy now is emerging in the rulemaking process. This minor shift in process has gone largely unnoticed, except by a small group of procedural inside players. Yet the implications of this change may prove more dramatic than its congressional drafters anticipated. American pluralistic theory proceeds on the premise that participatory democracy is a good thing, from which one could infer that it is impossible to have too much of a good thing. The ultimate issue raised by the recent rulemaking reform, however, is an old one: who should make the rules?

While imbued with imposing philosophical overtones, the problem of procedural rulemaking is also rife with complex subsidiary issues. Is judicial rulemaking really a “legislative” function and, if so, should rule-drafting then be subject to the full-dress legislative process, including witness hearings and interest group lobbying? Who should be heard and when? What does it mean to be “heard” in the rule-drafting process? Does it matter if the judicial rulemaking process becomes politicized? Has the judicial rulemaking process ever not been politicized?

The purpose of this Article is twofold. First, the Article describes the new proposed informal discovery rule and its genesis. As a departure from existing civil discovery practice, this proposed rule deserves explanation and analysis contemporaneous with its promulgation. Second, and perhaps more importantly, this Article describes the rule-drafting process involved in creating the proposed informal discovery rule. The purpose of this discussion is to focus attention on the increased politicization of the civil rulemaking process and to assess the benefits and dangers involved in politicization.

This Article has three theses. First, partisan law reformers have abandoned the judicial arena as the forum for achieving social change, and instead are focusing legal reform efforts on the rules and the rulemaking process. Sensing the demise of judicial activism, social reformists have shifted strategy to the rulemaking process. This tactical repositioning is interesting because it reflects a belief on the part of many partisan advocates that all substantive law is procedurally driven. As every five-year-old knows, the kid who gets to make the rules of the game has the greatest chance of winning. If this is what this shift signals, then the Advisory Committee faces increased challenges to its rule reform efforts that result in procedural rules that expand, modify, or amend the substantive law, as prohibited by the Rules Enabling Act.

Second, opening the rulemaking process at the earliest stages of rule promulgation will politicize the rulemaking process as never before, with perhaps worrisome consequences. Either the Advisory Committee will create vacuous, ineffective rules that are the result of political compromise, or the Committee will fail to effectuate any rule reform, becoming bogged down in endless stalemate, delay, and legislative paralysis. Even more troubling, the Committee in the future may face charges of unresponsive rulemaking if it fails to consider various new constituent concerns.

Third, the inevitable politicization of the Civil Rules Advisory Committee foreshadows the decline of that body's role in procedural rule-drafting. The partisan rule reformers will realize quickly that the Advisory Committee, by its nature, is an ineffectual forum in which to lobby for rule reform. Not only is the Advisory Committee painfully slow, deliberative, and dull, but its Article III judges have little incentive to bend to political will. Hence, the partisan rule reformers eventually will abandon the Advisory Committee and take their causes to other rulemaking bodies, namely the congressional committees with federal rulemaking oversight.

The demise of the influence of the Advisory Committee in judicial rulemaking will place procedural reform in Congress's hands. What cannot be accomplished in the Advisory Committee — effective legislative lobbying — will be accomplished quite effectively in congressional committees. There, the full brunt of participatory democracy will come to bear in the rulemaking process. The questions, of course, are whether it is desirable for congressional committees to draft procedural rules and for current legislative processes to inform procedural rules.

This Article discusses these three theses in three sections. Part I first describes the provisions of the proposed informal discovery rule. Next, it discusses the basis for the proposed rule, as well as experience with similar informal discovery rules. Part II then examines the criticism and opposition to the proposed informal discovery rule as an illustration of the nascent politicization of the drafting process and the sources of this politicization. Finally, Part III explores the broad questions of participatory rulemaking and implications for the future of the traditional judicial rulemaking bodies.

This Article, then, contrasts abstract theories of rulemaking with the political realities of legislative politics. In essence, what is being played out is a contemporary version of Jean Renoir's classic movie, The Rules of the Game. There, the brutalities of World War I caused the remaining French nobility to witness the demise of their genteel, civilized world. The Advisory Committee has enjoyed this aura of the Old Guard — of genteel, deliberative rulemaking. Now, the rules of the game are changing and the question remains open whether the Advisory Committee is destined to go the way of the French aristocracy.

Full Citation

Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 North Carolina Law Review 701 (1991).