The Varieties of State Rulemaking Experience and the Consequences for Substantive and Procedural Fairness

Professor Mullenix begins her paper by discussing the relative obscurity of rulemaking scholarship in general, what she calls an “untended garden of the legal landscape,” and in particular, the lack of study of state court rulemaking. Her paper surveys state rulemaking models, and she finds that the state rulemaking landscape is incredibly varied, complex, colorful, and untidy. She first examines the well-known federal rulemaking model, which has three distinguishing characteristics: rulemaking authority is delegated by Congress to the federal judiciary; it is shared with Congress, which has the authority to promulgate rules; and it is limited by statute. She looks at the Rules Enabling Act, and the limitations it sets on rulemaking, which has inspired a spirited debate concerning the substance/procedure distinction. The paper then discusses how Federal Rules are implemented through the use of rules advisory committees and briefly comments on the consequences of open-rulemaking on the federal rule promulgation process since the late 1980s. This discussion of federal rulemaking provides a background for the models of rulemaking that many states have adopted as part of their organic law.The next section attempts to compare and categorize state rulemaking models. As Professor Mullenix shows, most states have adopted variations of the federal rulemaking model of delegated, limited, and shared rulemaking authority, and that almost all states have imposed limitations on the judiciary’s rulemaking authority through either direct adoption of the Rules Enabling Act language, or by similar restrictions on the rulemaking power of the courts. She then describes other state rulemaking models: where rulemaking is vested in the legislature; where rulemaking is a function of the inherent powers of the state courts that do not share power with the legislature; and states without formal authorization or structures, in which rulemaking is accomplished through other auspices. Professor Mullenix discusses the composition of rulemaking groups in various states with descriptions of the mechanisms for professional or public participation in the rulemaking process. She examines the open rulemaking environment and the notice and comment periods in various states such as Arizona, Mississippi, and Washington.Professor Mullenix concludes her paper by noting some common similarities among the states in their rulemaking processes, such as the vesting of rulemaking authority in the judiciary but at the same time including means for which this power is shared with the legislature. She notes the wide variation among the states in the way they form their rulemaking committees or groups and offers some ways in which the states differ from the federal government, especially when it comes to the enacting of statutes designed to ensure open rulemaking and other transparency provisions. Finally, she observes that judges, practicing attorneys, jurists, and academics are best situated to understand the reality of local rulemaking and the consequences of any particular state’s rulemaking model on state substantive and procedural rights, and she argues that the new transparency and participation provisions have both enhanced and inhibited rulemaking.