Intelligence Law School - Course 1: Lesson 5.5.3 Rules by Individual Federal Courts [HTML-Only]


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LESSON 5: ADMINISTRATIVE LAW


5.5 Court Rules


5.5.3 Rules by Individual Federal Courts


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5.5.3 Rules by Individual Federal Courts

In addition to broad rules governing practice, procedure, and evidence before all federal courts nationwide, there is also a type of administrative court rules promulgated by individual courts within the federal judiciary.[1]

The rulemaking process for these lower court rules does not have to be handled by the Supreme Court.

Instead it is handled by the individual courts themselves.

For all lower courts below the Supreme Court, this rulemaking process is governed by 28 U.S.C. Section 2071.[2]

It requires public notice and an opportunity for comment by interested persons before final promulgation of a binding rule.[3] 

 

Footnotes

[1] See 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 (“All courts created by Act of Congress have been given the power to prescribe rules for the conduct of their business, after giving public notice and allowing time for comment,  so long as the rules are consistent with Acts of Congress and procedural rules promulgated by the Supreme Court. District court rules so made may be modified or abrogated by circuit judicial councils, while the Judicial Conference of the United States may modify or abrogate rules prescribed by courts other than the Supreme Court.”).

[2] 28 U.S.C. § 2071 (Rule-making power generally "(a) The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title [28 U.S.C. § 2072]. (b) Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment. Such rule shall take effect upon the date specified by the prescribing court and shall have such effect on pending proceedings as the prescribing court may order. (c) (1) A rule of a district court prescribed under subsection (a) shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit. (2) Any other rule prescribed by a court other than the Supreme Court under subsection (a) shall remain in effect unless modified or abrogated by the Judicial Conference. (d) Copies of rules prescribed under subsection (a) by a district court shall be furnished to the judicial council, and copies of all rules prescribed by a court other than the Supreme Court under subsection (a) shall be furnished to the Director of the Administrative Office of the United States Courts and made available to the public. (e) If the prescribing court determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment, but such court shall promptly thereafter afford such notice and opportunity for comment. (f) No rule may be prescribed by a district court other than under this section.").

[3] 28 U.S.C. § 2071(b) (“Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment.”).

 


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