The Process of Factfinding in Judicial Rulemaking: 'Some Kind of Hearing' on the Factual Premises Underlying Judicial Rules

Abstract

Judicial promulgation of generally applicable rules involving the administration and operation of American judicial systems has been increasingly criticized during the past decade as both too secretive and too closed. There now exists a solid consensus that greater "public process" is needed in judicial rulemaking. Perhaps in response, some judges and legislators are changing the ways in which judges adopt or help adopt rules by making judicial rulemaking procedures more open and more accessible. For example, some judicial rulemaking procedures have become better known through their formal establishment by law; meetings at which judicial rules are discussed have been opened to the public; meaningful notice and opportunity to be heard have been afforded interested persons prior to judicial rule promulgation; and records of judicial rulemaking activity have been maintained. Although there is widespread agreement that the movement toward more open and accessible rulemaking procedures is long overdue, there is also recognition that the particular means of implementing public process judicial rulemaking procedures may need to vary. One factor bearing on the need for variation is the scope of the judicial rulemaker's authority: public process for narrow, technical rules should be different from public process for rules affecting sensitive issues of social policy. A second factor is the nature of the judicial rulemaker's authority: public process should be different for fettered or advisory judicial rulemaking than for unfettered judicial rulemaking. Although the recent attempts at implementing public process in judicial rulemaking are commendable, they are often deficient because the factfinding process underlying the rulemaking activity is inadequate. In the following pages we examine varying procedures for making determinations of adjudicative and legislative facts on which new judicial rules are based. Without significant improvement in the manner in which judicial rulemakers recognize, debate, and resolve these facts, any progress toward open and accessible rulemaking procedures will be marginal. Before suggesting the various ways in which a public process judicial rulemaking procedure can better promote accurate factual determinations, we briefly review the contemporary forms of judicial rulemakers, rules and rulemaking procedures and present illustrations of how different judicial rulemakers have determined relevant adjudicative and legislative facts underlying new judicial rules. It is our hope that our suggestions will improve the procedures judicial rulemakers use to recognize, debate, and resolve factual issues germane to judicial rules.

Keywords: judicial rulemaking, judicial rules, adjudicative facts, legislative facts