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Excerpted from: Brooke D. Coleman, #SOWHITEMALE: Federal Civil Rulemaking, 113 Northwestern University Law Review Online 52 (October 1, 2018) (96 Footnotes)(Full Document)


BrookeDColemanOf the 136 individuals who have served on the Civil Rules Advisory Committee since its inception, 116 are white men, fifteen are white women, and five are men of color. Of the current fourteen members on the Committee, nine are white men, four are white women, and one is a black man. In other words, in the roughly eighty years of the Civil Rules Committee's existence, the gender and racial identity of Committee members has remained static. The Committee has been and remains #SoWhiteMale.

One deflection of this critique is that the rules are too technical--too boring, frankly--to be tainted by misogyny or racism. Courts and many commentators, including the rule-makers themselves, argue that the rulemaking process is technocratic; thus, it is ostensibly neutral and apolitical. Indeed, a primary reason the Supreme Court delegated its rulemaking authority to a committee was to ensure that litigation experts, not Congress, would create and monitor the Civil Rules. Yet, as significant scholarship in administrative law has revealed, when it comes to rulemaking, there is no clean line between expertise and politics. Putting a group of experts on a committee for a technical task does not mean the process and its participants are immune from bias. To the contrary, ideology, politics, and identity inform how the Civil Rules Committee members approach their work.

Scholars have already considered how the rule-makers might be influenced by their work experience, political ideology, and litigation attitudes. This Essay considers the impact of the rule-makers' gender and racial identities. It is the first to collect and quantify demographic data regarding the gender and racial composition of the Committee members and the first to consider how that demographic data bears on Committee work. This Essay argues that the Committee's homogeneous racial and gender composition is problematic.

First, the Committee members--while expert--are still human beings; thus, the rule-makers' identities matter. Gender and racial identity do not dictate ideology or normative values, but they certainly have influence. The white male hegemony of civil rulemaking--operating in tandem within a profession that has struggled to welcome women and people of color--has almost certainly affected how the Civil Rules have developed and continue to evolve. Social science regarding group dynamics and decision-making indicates that the Committee's work would benefit from increased identity-diverse Committee membership. Scholars have already argued that civil rulemaking would improve if fewer judges and more “generalist” lawyers served on the Committee because varied perspectives would improve the quality of the rules produced. Similarly, a Committee with more men of color and women of all colors would change and improve the Committee's output as well.

Second, the lack of gender and racial diversity on the Committee is problematic because it is iniquitous. The history of the American legal system is one of exclusion. While many individual lawyers have carried forward an ambitious social justice agenda, the profession itself has excluded men of color and all women for centuries. Because of, and in spite of, that history, legal institutions should endeavor to remedy that exclusion by aggressively pursuing equalizing measures. This effort includes creating a Civil Rules Committee that reflects the greater population.

The Essay will proceed in two parts.

Part I presents data regarding Committee membership over time. This Part compares the Committee's gender and racial composition to both the general population and specific segments of the legal profession.

Part II then takes up the argument of why identity matters. It argues that the rulemaking process would produce better results if the Committee were more diverse. This Part also argues that putting an end to a #SoWhiteMale rulemaking Committee would help break down the inequalities entrenched in the legal profession and civil justice system.

. . .

#SoWhiteMale should not describe the federal civil rulemaking process or the Federal Rules of Civil Procedure. In the first survey of its kind, this Essay evaluates the gender and racial compositions of the Rulemaking Committee over its eighty-year tenure and finds that historically white men have disproportionately served on the Committee to the exclusion of men of color and women of all colors. There are also clear disadvantages to excluding diverse individuals from the Rulemaking Committee. Social science studies show diverse perspectives can help mollify members' potential biases, identify details other members may miss, and encourage deeper thinking about complex problems. While the Committee has made progress in including white women and men of color in the last few decades, no women of color have ever been appointed to the Committee, and white men continue to be appointed in overwhelming numbers.

Moreover, the underrepresentation of men of color and women of all colors on the Committee reflects the dearth of diverse voices and perspectives within the legal profession itself. Prioritizing the diversification of the Rulemaking Committee is a small step in correcting the systematic exclusion of diverse individuals in the legal profession.

The time has come for the Chief Justice to commit to ensuring that the Rulemaking Committee's racial and gender composition is more representative. The evidence of imbalance is clear and the action to be taken is quite simple. Judges, attorneys, and academics must now demand change.

Associate Dean of Research & Faculty Development and Professor of Law, Seattle University School of Law.