Managerial Rulemaking

<p><span>If we were to conceive of the federal civil rulemaking process as a corporate entity, the judges who sit on the committee would be textbook middle management. They are positionally subordinate to the Supreme Court and the Judicial Conference of the United States, but they are responsible for crafting the rules that their fellow district court judges must follow. Like middle managers in the corporate context, this positionality can be quite challenging. Being in the middle requires the committee-member judges to compromise, equivocate, and to some degree, stall.</span></p> <p><span>This article questions the wisdom of placing judges in this managerial rulemaking position. There are benefits to judicial involvement in rulemaking. As judges, they have immense procedural expertise. But this expertise does not come without complication. As conscientious institutionalists, these judges represent the entire universe of Article III judges—they must consider how the results of the rulemaking process will affect the legitimacy of the bench. Yet in tension with this protective stance, they must also respect the hierarchy. After all, the Chief Justice appointed them to a prestigious position on the rulemaking committee, and the Supreme Court must approve any proposed rules within that rulemaking process. Adding more pressure is the fact that these judges also represent fellow members of their profession. Committee-member judges, not surprisingly, fiercely protect judicial discretion within the rules as they weigh how each rule change might impact their—and their colleagues’—judicial power. In short, judge committee members manage the rulemaking process from the middle, doing what they can to appease upper management—the Supreme Court—while also placating the workers—fellow judges. The result is a rulemaking process that attempts to maximize workers' discretion while also appeasing the higher-ups. </span></p> <p><span>This article will unpack what it means for these judges to be in middle management on the committee by demonstrating how their positionality shapes which rules the committee considers and how it considers them. It then argues that judges should not occupy such a compromised management role, or that, at the very least, there should be significantly fewer judges on the committee. The value of middle management in the corporate context is up for debate, but in the rulemaking context, it seems that the middle might be getting in the way.</span></p>