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.
No 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.