New research on the internal dynamics of court rulemaking

Amending a Federal Rule of Civil Procedure is an act of intricate teamwork. Finally, some evidence of just how intricate.

Since 1934, the federal court system has been empowered to craft its own rules of procedure and evidence. That work is primarily done by five Advisory Committees, each composed of judges, attorneys, and law professors, who review the existing rules and periodically make recommendations to amend or update them.

FRCPNo rule proposal makes everyone happy, and academics in particular often critique the rule changes that the Committees take up (or fail to take up). But in recent years, that criticism has shifted from the substance of the Committees’ work to the composition of the Committees themselves. In particular, academic critics are increasingly content to assert, without any rigorous evidence, that the makeup of the Committees leaves them prone to engage in groupthink or other cognitive biases.

Are those allegations supported by a careful review of the Committees’ work? A rigorous, four-year case study says no. In fact, far from being entities mired in groupthink, the Committees are more akin to expert teams whose decisions are carefully researched and thoroughly considered.

The case study follows the Advisory Committee on Civil Rules as it considered an amendment to Federal Rule of Civil Procedure 30(b)(6). That rule allows parties to depose corporations and organizations, by requiring the deposing party to submit a list of topics that it wishes to cover at the deposition, and the corporation to provide one or more representatives who can knowledgably answer the question on the corporation’s behalf.

In 2016, the American Bar Association asked the Advisory Committee to consider changes to Rule 30(b)(6), on the grounds that gaps and ambiguities in the rule created opportunities for lawyers to avoid cooperation and otherwise game the system. For the next three-and-a-half years, the Committee collected and processed thousands of pieces of information, constantly reformulated its own understanding of real-world 30(b)(6) practice, and repeatedly revisited its assumptions about the best solution (or whether a solution was even possible). The final amendment, which went into effect in 2020, was a modest change that required the parties’ counsel to meet and confer about the deposition in advance. But this modest change was the product of Committee members’ remarkable flexibility and openness to different ideas, and a concerted effort by the Committee to collect and review a wide range of relevant information. It was, in other words, the opposite of groupthink and knee-jerk decisionmaking.

This study includes interviews with Committee members and field notes drawn from my direct observations of the Committee’s meetings. My hope is that the story of the 30(b)(6) amendment will cast some much-needed light on the actual mechanics and cognitive teamwork of the federal civil rulemaking process. One can surely oppose or criticize rule changes on substantive grounds, but suggesting that rules are biased or substandard based purely on the demographics of Committee members has no basis in fact.

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