Public Process and State Judicial Rulemaking

Abstract

Judicial rules are not as visible as statutory enactments, constitutional provisions, or court decisions, but they are often just as important. Rules such as those governing class actions, evidentiary privileges, and attorney conduct, for example, have societal consequences. Frequently, however, the has little or no opportunity prior to adoption to participate in an evaluation of these rules. In a series of recent works, federal judge Jack B. Weinstein called attention to the lack of public in the rulemaking mechanisms of the federal courts. He suggested certain reforms that would open these mechanisms more fully to input. The scope of process in state judicial rulemaking has been discussed very little. Although, as Judge Weinstein maintains, process is necessary in judicial rulemaking, not all of his suggestions for the federal judicial system provide appropriate models for state judicial systems. Judge Weinstein tried to persuade others to speak out so that the matter [of rulemaking reform] can be thoroughly debated. This article is intended to contribute to the dialogue Judge Weinstein encouraged. First, it will define judicial rules and judicial rulemakers, using a functional rather than formal approach. Next, factors that differentiate federal and state judicial rulemakers will be examined in order to show that the rulemaking methods used in the federal system will not necessarily meet the needs of state judicial rulemakers. Rationales for the need to include process in judicial rulemaking will be explored. Finally, an adaptable framework which includes process in state judicial rulemaking will be proposed.