Administrative rulemaking generated the volume of litigation that now pushes judges into policymaking.

Evidence

The creation of regulatory agencies beginning in the twentieth century produced an explosion of federal rules and regulations. Because this increase in law has created new rights and responsibilities, it has stimulated litigation. Many of these cases do not involve judicial policymaking. Judges merely enforce preexisting legal standards, and the outcomes of the cases are of consequence only to the litigants. But some of these cases create new opportunities for—and indeed, may oblige judges to engage in—judicial policymaking. — G. Alan Tarr, Judicial Process and Judicial…, 2826

Categorization

• DEFINE: Distinguishes routine enforcement of preexisting standards from genuine judicial policymaking — the key analytic line for the course.
• XREF: Connects to the course theme of legal actors beyond judges shaping doctrine: agencies as law-generators.