Intelligence Law School - Course 1: Lesson 5.5.2 Federal Rules of Practice, Procedure, and Evidence [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.5 Court Rules


5.5.2 Federal Rules of Practice, Procedure, and Evidence


Lecture Audio



Annotated Lecture Transcript

5.5.2 Federal Rules of Practice, Procedure, and Evidence

Federal Rules of Practice, Procedure, and Evidence are important administrative rules applicable to the Judicial Branch.

These rules are sets of black-letter procedures governing the conduct of judicial proceedings before all federal courts.

Here are some examples of important sets of this type of rules:

Ø  The Federal Rules of Civil Procedure;[1]

Ø  The Federal Rules of Criminal Procedure;[2]

Ø  The Federal Rules of Evidence;[3] and

Ø  The Federal Rules of Appellate Procedure.[4]

 

These rules have the force and effect of law, but are not enacted directly by Congress.[5]

Instead, Congress passed a statute known as the Rules Enabling Act[6] which delegated lawmaking authority to the Supreme Court which in turn promulgates these procedures as needed.[7]

Congress retains ultimate control, however, and may object to any rules that conflict with Congressional notions of fair play and substantial justice.[8]

Specifically, the enabling statute says that "[s]uch rules shall not abridge, enlarge or modify any substantive right.”[9]

The creation and definition of substantive rights through lawmaking is the job of the Legislature, not the courts.

For example, this process can’t be used to create or modify an evidentiary privilege; that can only be done by Congress through statute.[10]

Ø  The Judicial Conference of the United States: Drafting rules of procedure is pretty grueling work, and the 9 justices already have a ton on their plate; so, how do these rules ever get changed?

o   Well, the Supreme Court doesn’t actually draft the rules themselves; that work is performed by specialized committees[11] within an administrative organ of the Judiciary called the “Judicial Conference of the United States.”[12]

o   The Judicial Conference of the United States drafts the rules of procedure and practice governing federal courts and proposes amendments to existing rules as needed.[13]

o   After new proposed rules are created, they are submitted to the Supreme Court for its approval.[14]

o   If the Court approves of the changes, it promulgates the new rules by first transmitting them to Congress before May 1st of the year they are to go into effect.[15]

o   If Congress doesn’t object to the changes by passing legislation disapproving of them, the rules go into effect.

o   But they may not enter into force earlier than December 1st of the year they were submitted to Congress.[16]

o   Congress usually doesn’t interfere with rules changes approved by the Supreme Court,[17] but it has done so on a few notable occasions.

o   I’ll tell you about them in the footnotes to the annotated transcript of this lecture.[18]

 

Footnotes

[1] Adopted by the Supreme Court in December of 1937 and went into effect on September 16, 1938. 308 U.S. 645 (1938).

[2] The Federal Rules of Criminal Procedure first took effect on March 21, 1946. 327 U.S. 821 (1946). 

[3] The Federal Rules of Evidence were first enacted by Congress on January 2, 1975. Pub. L. No. 93-595, § 2(a)(1), 88 Stat. 1926, 1948. An annotated and updated version of the Federal Rules of Evidence in the Appendix to Title 28 of the U.S. Code Annotated.

[4] The Federal Rules of Appellate Procedure first took effect on July 1, 1968. 389 U.S. 1063 (1968).

[5] See Stephen C. Yeazell, Federal Rules of Civil Procedure with Selected Statutes—2000, at pg. xi (2000).

[6] The Rules Enabling Act was passed as part of the Judicial Improvements and Access to Justice Act. Act of Nov. 19, 1988, Pub. L. No. 100-702, 102 Stat. 4642. The Rules Enabling Act portion of the larger statute is located at §§ 401-407, 102 Stat. 4648-4652.

[7] Rules Enabling Act, 28 U.S.C. § 2072 (“(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. (c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.”).

[8] See generally P. L. Morgan, Congressional Research Serv., Promulgating Procedural Rules For the United States District Courts and Courts of Appeals (1998), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-292_3-26-1998.pdf (“By rules enabling acts, Congress has authorized federal courts to promulgate rules of procedure, but it has generally reserved the right to review proposed rules before they become effective.  On occasion, the Legislature has amended the changes submitted and it has also, sua sponte, made amendments through legislation.  This report sketches the manner in which procedural rules for United States district courts and United States courts of appeals are adopted or modified and the participants in the process.  This report will be updated if changes take place in the way procedural rules are promulgated for the federal courts.”).

[9] 28 U.S.C. § 2072 (b); see also P. L. Morgan, Congressional Research Serv., Promulgating Procedural Rules For the United States District Courts and Courts of Appeals (1998), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-292_3-26-1998.pdf (“For more than 65 years, by virtue of the authority granted in several enabling acts, Congress has authorized the Supreme Court of the United States to promulgate rules of procedure for the federal district courts and courts of appeals. It has provided that "[s]uch rules shall not abridge, enlarge or modify any substantive right.  All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.””) (internal footnotes omitted).

[10] See generally P. L. Morgan, Congressional Research Serv., Promulgating Procedural Rules For the United States District Courts and Courts of Appeals (1998), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-292_3-26-1998.pdf (“Rules creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.”) (internal citations omitted).

[11] 28 U.S.C. § 2073(a)(2)(“The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges.”); see also 28 U.S.C. § 2073(b) (“The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing committee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and otherwise promote the interest of justice.”).

[12] See 28 U.S.C. § 331 (setting forth the composition and basic mission of the Judicial Conference of the United States).

[13] 28 U.S.C. § 2073(a)(1)(“The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section.”); see also P. L. Morgan, Congressional Research Serv., Promulgating Procedural Rules For the United States District Courts and Courts of Appeals (1998), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-292_3-26-1998.pdf (“The long standing practice of having committees of the Judicial Conference review proposed rule changes has been statutorily recognized albeit with a requirement that the meetings generally be open to the public.  The committees are composed of "members of the bench and the professional bar, and trial and appellate judges. The amendatory process begins with a suggestion for a change, addition or deletion to the rules made, in writing, to the Secretary of the Judicial Conference. The suggestion is then forwarded to the Chair of the Standing Committee on Rules of Practice and Procedure and the Chair of the appropriate advisory committee of which there are five one each for appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence rules. If the advisory committee finds that the proposal is  important enough to merit changing the rules, a draft of the change is made and, with permission of the Standing Committee, is published for comment and mailed to, inter alia, the bench and bar, legal publishers, and government agencies.  During a six month comment period, the advisory committee schedules one or more public hearings on the proposed amendment. After the hearings, the advisory committee again considers the proposal in light of the public comments. If approved, the amendment, along with a report summarizing the public comments and any minority views of the committee, is forwarded to the Standing Committee on Rules of Practice and Procedure.  If accepted by that body, the proposal is forwarded to the Judicial Conference for approval.  The Conference normally considers changes to the rules in September and if ratified, the proposed rule amendment is forwarded to the Supreme Court for transmittal to Congress. [Citing Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure: A Summary for the Bench and Bar (Brochure, October 1993)].”) (most internal footnotes omitted).

[14] This committee recommendation process is governed by formal statutory procedures added to the Rules Enabling Act by Congress in 1988. 28 U.S.C. § 2073(d) (“In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body's action, including any minority or other separate views.”). These procedures are directory, but not mandatory; i.e. failure to comply with the statutory procedures for proposing a rule change does not invalidate rules ultimately promulgated by the Supreme Court. 28 U.S.C. § 2073(e) (“Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title.”).

[15] 28 U.S.C. § 2074(a)(“The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.”).

[16] 28 U.S.C. § 2074(a)(“Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law.”).

[17] See Stephen C. Yeazell, Federal Rules of Civil Procedure with Selected Statutes—2000, at pg. xi (2000).

[18] See generally P. L. Morgan, Congressional Research Serv., Promulgating Procedural Rules For the United States District Courts and Courts of Appeals (1998), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-292_3-26-1998.pdf (“Congress acquiesced in the rules proposed by the Supreme Court until 1973 when the long-awaited, controversial, Federal Rules of Evidence (FRE) were submitted by the Chief Justice along with proposed amendments to the Federal Rules of Criminal Procedure (FRCrP) and  to the Federal Rules of Civil Procedure (FRCP). Those rules changes, delayed to allow additional time for review, were later amended and approved by Congress. Since that time, on several occasions, Congress has delayed or amended rules changes submitted by the Supreme Court and has, sua sponte, amended the FRE, the FRCrP, and the FRCP, as well as the Federal Rules of Appellate Procedure (FRAP), legislatively.”) (internal footnotes omitted).

 


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