Abstract

Any case heard in a United States federal court must adhere to a set of rules—or rather, a few different sets of rules. Regardless of the subject matter of the suit, the parties (and the judge) must follow the relevant Federal Rules. But that is not all. Parties bringing the case must also comply with local rules—those important rules that govern litigation in the space between and around the Federal Rules. These district- and circuit-specific rules govern highly consequential aspects of federal litigation, such as how cases will be assigned to judges, how those cases will then be managed, and whether final decisions will be public and precedential. One would think, as with the Federal Rules, that the process by which such rules are made is well studied. Yet little is known about the process of making local rules, even by the judiciary itself.

This Article is a comprehensive study of local rulemaking in federal district and appellate courts. It includes a first-of-its-kind empirical examination of the rulemaking structure of all ninety-four district and thirteen circuit courts. And it synthesizes qualitative data derived from interviews of fifty rulemakers, including judges, attorneys, and clerks of court. This thick description permits analysis of how local rulemaking processes vary from court to court and vary from the well-studied federal rulemaking process.

Putting this information together also permits a more normative and prescriptive analysis. We focus on the values that both Congress and the federal rulemakers have identified in rulemaking: procedural regularity, transparency, public participation, and information sharing. We show where local rulemaking falls short on these dimensions, and we conclude by offering ways to address such shortcomings—ways that reflect the dynamic system of national, local, and individual judge rulemaking that we document throughout. Ultimately, we hope to improve the process by which local rules are made, and, with it, the rules governing litigation going forward.

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