Tuesday, October 13, 2020
Brooke Coleman, #SoWhiteMostlyMale Federal Procedural Rulemaking Committees, UCLA L. Rev. Disc. (Forthcoming)
Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That’s 94% of the committee membership. Of that same group, 513—or 81%—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while expert—are not disinterested actors. This essay examines racial and gender diversity across six different committees. The data tell a textured story of homogeneity, diversity, and power. Critically, the respective committees’ demographic compositions differ both historically and now. But there is one significant similarity across all committees: The Chief Justice can and should appoint a more diverse set of individuals to these committees, and the rulemaking committee members, the Judiciary, and the Bar should demand it.