NCJ Number
48492
Date Published
1977
Length
230 pages
Annotation
THE PROCESS BY WHICH RULES OF PROCEDURE ARE ADOPTED BY THE COURTS IS EXAMINED IN THIS STUDY OF RULEMAKING AS THE LEGISLATIVE NONADJUDICATORY FUNCTION OF THE JUDICIARY.
Abstract
AN INTRODUCTION PRESENTS AN OVERVIEW OF THE PHENOMENON OF COURT CONTROL OF COURT PRACTICE AND FUNCTIONS THROUGH RULES PROMULGATED BY THE COURTS. RULEMAKING IS DEFINED, AND DISCUSSIONS OF RULEMAKING AS LEGISLATION, DISENCHANTMENT WITH THE CURRENT (1977) RULEMAKING PROCESS, THE ADVANTAGES OF RULEMAKING IN MEETING THE GROWING PRESSURES ON THE COURTS, AND RULEMAKING AS AN EXERCISE IN PRAGMATISM ARE PROVIDED. THE DEVELOPMENT OF NATIONAL RULEMAKING POWER IS THEN EXAMINED, WITH PARTICULAR ATTENTION TO THE ENGLISH EXPERIENCE, THE EVOLUTION OF AN INDEPENDENT FEDERAL JUDICIARY, ADVISORY OPINIONS, THE HISTORICAL ORIGINS OF THE RULEMAKING POWER OF THE FEDERAL COURTS, AND THE EVOLUTION OF THE EXISTING FEDERAL RULES. THE ROLE OF BOTH THE COURTS AND THE LEGISLATURE IN RULEMAKING IS EMPHASIZED, WITH EXAMPLES FROM EXPERIENCES IN NEW JERSEY AND OTHER STATES. THE REFORM OF NATIONAL RULEMAKING IS EXAMINED. THE CONGRESSIONAL POWER TO DELEGATE AND MODIFY TERMS OF DELEGATION, PRACTICAL OBJECTIONS TO THE EXERCISE OF RULEMAKING POWER BY THE U.S. SUPREME COURT, AND PROPOSALS FOR MODIFICATION OF THE NATIONAL RULEMAKING PROCESS ARE DISCUSSED. LOCAL COURT RULES, GUIDELINES, AND DIRECTIVES, AS WELL AS INDIVIDUAL JUDGE'S RULES, ARE ALSO ANALYZED. QUASI-RULE DIRECTIVES AND IMPROVEMENTS IN LOCAL RULEMAKING ARE EXAMINED. FINALLY, CHANGES IN THE NATIONAL RULEMAKING PROCESS, IN THE LOCAL PROCESS FOR MAKING RULES AND GUIDELINES, AND IN RULEMAKING BY INDIVIDUAL JUDGES ARE SUGGESTED. RECOMMENDATIONS REGARDING THE AVAILABILITY OF PUBLIC INFORMATION AND THE INITIATION OF CHANGES IN THE RULEMAKING PROCESS ARE PROVIDED. REFERENCE NOTES AND AN INDEX ARE INCLUDED. (KBL)