Full text of "Rules Enabling Act of 1985 : hearing before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, Ninety-ninth Congress, first session, on H.R. 2633 and H.R. 3550 ... June 6, 1985"

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RULES ENABLING ACT OF 1985

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-NINTH CONGRESS

FIRST SESSION

H.R. 2633 and H.R. 3550

RULES ENABLING ACT OF 1985

JUNE 6, 1985

Serial No. 15

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
48-930 0 WASHINGTON I 1985

RULES ENABLING ACT OF 1985

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-NINTH CONGRESS

FIRST SESSION
ON

H.R. 2633 and H.R. 3550

RULES ENABLING ACT OF 1985

JUNE 6, 1985

Serial No. 15

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE
48-930 0 WASHINGTON : 1985

COMMITTEE ON THE JUDICIARY

PETER W. RODINO, Jr., New Jersey, Chairman
JACK BROOKS, Texas HAMILTON FISH, Jr., New York

ROBERT W. KASTENMEIER, Wisconsin CARLOS J. MOORHEAD, California

DON EDWARDS, California HENRY J. HYDE, Illinois

JOHN CONYERS, Jr., Michigan THOMAS N. KINDNESS, Ohio

JOHN F. SEIBERLING, Ohio DAN LUNGREN, California

ROMANO L. MAZZOLI, Kentucky F. JAMES SENSENBRENNER, Jr.,

WILLIAM J. HUGHES, New Jersey Wisconsin

MIKE SYNAR, Oklahoma BILL McCOLLUM, Florida

PATRICIA SCHROEDER, Colorado E. CLAY SHAW, Jr., Florida

DAN GLICKMAN, Kansas GEORGE W. GEKAS, Pennsylvania

BARNEY FRANK, Massachusetts MICHAEL DeWINE, Ohio

GEO. W. CROCKETT, Jr., Michigan WILLIAM E. DANNEMEYER, California

CHARLES E. SCHUMER, New York HANK BROWN, Colorado

BRUCE A. MORRISON, Connecticut PATRICK L. SWINDALL, Georgia

EDWARD F. FEIGHAN, Ohio HOWARD COBLE, North Carolina

LAWRENCE J. SMITH, Florida
HOWARD L. BERMAN, California
FREDERICK C. BOUCHER, Virginia
HARLEY O. STAGGERS, Jr., West Virginia
JOHN BRYANT, Texas

M. Elaine Mielke, General Counsel

Garner J. Cline, Staff Director

Alan F. Coffey, Jr., Associate Counsel

Subcommittee on Courts, Civil Liberties, and the Administration of Justice

ROBERT W. KASTENMEIER, Wisconsin, Chairman
JACK BROOKS, Texas CARLOS J. MOORHEAD, California

ROMANO L. MAZZOLI, Kentucky HENRY J. HYDE, Illinois

MIKE SYNAR, Oklahoma MICHAEL DeWINE, Ohio

PATRICIA SCHROEDER, Colorado THOMAS N. KINDNESS, Ohio

BARNEY FRANK, Massachusetts PATRICK L. SWINDALL, Georgia

BRUCE A. MORRISON, Connecticut HOWARD COBLE, North Carolina

HOWARD L. BERMAN, California
FREDERICK C. BOUCHER, Virginia

Michael J. Remington, Chief Counsel

Gail Higgins Fogarty, Counsel

David W. Beier, Counsel

Deborah Leavy, Counsel

Thomas E. Mooney, Associate Counsel

Joseph V. Wolfe, Associate Counsel

(II)

CONTENTS

WITNESSES

Page

Burbank, Stephen B., associate professor and associate dean, University of

Pennsylvania Law School 2

Prepared statement with attachments 6

Rothstein, Paul, professor, chairman of the rules committee, American Bar

Association, Criminal Justice Section 2

Prepared statement 49

APPENDIXES

A. American Bar Association policy on the Rules Enabling Act 63

B. American Bar Association standards relating to court organization 75

Appendix 1. Bills and Background Information

H.R. 2633, 99th Congress, 1st session (1985) 94

H.R. 3550, 99th Congress, 1st Session 1985 103

In re: Testimony of the Alliance for Justice on the 1984 proposal to amend
rule 68, before the Judicial Conference Advisory Committee on Civil Rules
by Laura W.S. Macklin (January 28, 1985) 113

Appendix 2. Correspondence

Letter from Hon. D. Lowell Jensen, Acting Deputy Attorney General to Hon.
Edward T. Gignoux, chairman, Committee on Rules of Practice and Proce-
dure (April 5, 1985) 159

Letter from Hon. D. Lowell Jensen, Acting Deputy Attorney General to Hon.
Edward T. Gignoux, chairman, Committee on Rules of Practice and Proce-
dure (February 28, 1984) Ib9

Letter from Nan Aron, Alliance for Justice, Laura Macklin, Institute for
Public Representation and Judith Resnick, Dennis E. Curtis, and William
Genego, University of Southern California Law School to Hon. Robert W.
Kastenmeier (June 5, 1985) 190

Letter from Nan Aron, director, Alliance for Justice to Joseph F. Spaniol, Jr.,
secretary, Standing Committee on Rules of Practice and Procedure, with
attachments (April 1, 1985) 196

Letter from Nan Aron, Alliance for Justice; Laura Macklin, Institute for
Public Representation; and Judith Resnick, Dennis Curtis, and William
Genego, University of Southern California Law School to Hon. Robert W.
Kastenmeier (June 5, 1985) 232

Letter from Edward T. Gignoux, Chairman, Committee on Rules of Practice
and Procedure of the Judicial Conference of the United States to Hon.
Robert W. Kastenmeier, with attachments (July 11, 1985) 238

Letter from Hon. Jack Weinstein, Chief Judge, U.S. District Court, Eastern

District of New York to Hon. Robert W. Kastenmeier (July 15, 1985) 263

Letter from Hon. Robert W. Kastenmeier to Hon. Edward T. Gignoux, Chair-
man, Committee on Rules of Practice and Procedure of the Judicial Confer-
ence of the United States (August 7, 1985) 265

Letter from Hon. John Conyers, Jr., chairman, Subcommittee on Criminal
Justice to Hon. Warren E. Burger, Chief Justice, U.S. Supreme Court
(September 16, 1985) 272

(Hi)

Appendix 3. Articles

Weinstein, "Reform of Federal Court Rulemaking Procedures", vol. 76, Co-
lumbia L. Rev. 323-382 (October 1976)

Letter from Hon. Edward T. Gignoux, Chairman, Committee on Rules of
Practice and Procedure of the Judicial Conference of the United States
(September 24, 1984) ...... "••••■ ; - ;• 274

Letter from E. Richard Larson, Burt Neuborne, and Morton Halpenn, Ameri-
can Civil Liberties Union to Hon. Robert W. Kastenmeier (September 26,
i Qg5) 276

Letter from Stephen B. Burbank, professor, University of Michigan Law
School to David Beier, Esq., Subcommittee on Courts, Civil Liberties and
the Administration of Justice (September 20. 1985) 280

283

RULES ENABLING ACT OF 1985

THURSDAY, JUNE 6, 1985

House of Representatives,
Subcommittee on Courts, Civil Liberties,

and the Administration of Justice,

Committee on the Judiciary,

Washington, DC.

The subcommittee met at 2:12 p.m., in room 2226, Rayburn
House Office Building, Hon. Robert W. Kastenmeier (chairman of
the subcommittee) presiding.

Present: Representatives Kastenmeier, Hyde, Kindness and
Swindall.

Staff present: David W. Beier, counsel; Joseph Wolfe, associate
counsel; and Audrey Marcus, clerk.

Mr. Kastenmeier. The subcommittee will come to order.

This afternoon the subcommittee will conduct hearings on the
Rules Enabling Act, H.R. 2633. Last Congress we held hearings on
H.R. 4144, the bill to reform the Rules Enabling Act process. The
subcommittee marked up that bill and ordered a clean bill reported
favorably to the full committee but did not pursue the legislation
further.

The purpose of this afternoon's hearing is to examine the new
bill, H.R. 2633. This bill very similar to the final bill processed last
session, except for one major respect: This bill provides no su-
persession provision. Instead, H.R. 2633 provides that the Supreme
Court can no longer prescribe general rules of practice and proce-
dure that abridge, enlarge or modify any substantive right or su-
percede any provision of the U.S. law. Under current law general
rules of practice and procedure promulgated by the Supreme Court
supercede all laws in conflict with such rules.

Today the subcommittee will hear from two distinguished wit-
nesses, Prof. Stephen Burbank, associate professor and associate
dean, University of Pennsylvania Law School, and Prof. Paul Roth-
stein, chairperson, ABA Criminal Justice Section's Committee on
Rules of Procedure and Evidence. Today's hearing will focus on the
process by which the Federal judiciary and the Congress promul-
gate Federal rules of practice and procedure.

Under current Federal law, as well as under the proposed bill,
rules developed by the judiciary will have the full force and effect
of law. Existing rules govern class action determinations, set the
prerequisites for the issuance of injunctions and other procedural
matters that vitally affect the property and rights of citizens. Thus,
there is little question that these procedural rules are important.

(l)

If I may, I would like to call both witnesses forward. We have
only two witnesses today. The testimony may not be precisely the
same, but presumably it is not antagonistic.

So, I would like to greet both Prof. Stephen Burbank, as well as
Prof. Paul Rothstein.

I call upon Professor Burbank to proceed. We have a copy of
your statement, and you may proceed as you wish.

TESTIMONY OF STEPHEN B. BURBANK, ASSOCIATE PROFESSOR
AND ASSOCIATE DEAN, UNIVERSITY OF PENNSYLVANIA LAW
SCHOOL, AND PAUL ROTHSTEIN, PROFESSOR, CHAIRMAN OF
THE RULES COMMITTEE, AMERICAN BAR ASSOCIATION CRIMI-
NAL JUSTICE SECTION

Mr. Burbank. Thank you very much, Mr. Chairman.

Mr. Chairman and Members of the Subcommittee, I appreciate
the opportunity to testify on H.R. 2633, the Rules Enabling Act of
1985. There is now general recognition that court rules can have a
dramatic effect on the outcome of litigation and hence on rights
recognized by the substantive law. Increasingly in recent years,
commentators have criticized the structure and process of Federal
court rulemaking, both supervisory and local, as well as the stand-
ards used in determining the validity of Federal court rules.
During the same period, Congress has prevented a number of su-
pervisory rules and amendments prescribed by the Supreme Court
from taking effect, and on other occasions it has come close to
taking that action. This hearing and the hearings held in previous
sessions should provide a basis for an informed decision by Con-
gress whether, after some 50 years with the modern enabling acts,
the existing system can be improved. I believe that it can and that
this effort is well worth Congress' attention, if only to diminish
congressional involvement in Federal court rulemaking in the
future.

The most important issue raised by H.R. 2633, when compared
with the antecedent bills introduced by the chairman on this sub-
ject, concerns the relationship between supervisory rules prescribed
by the Supreme Court and existing acts of Congress. Currently,
most valid supervisory rules supersede previously enacted statutes
with which they are in conflict. Proposed section 2072(b) includes a
provision that supervisory rules not supersede any provision of a
law of the United States. The proposed change is an important one,
and it deserves close attention.

When the first bill to give the Supreme Court supervisory rule-
making power in actions at law was being considered in 1914, a
provision for superseding effect was deemed important because of
the large number of Federal statutes that regulated practice and
procedure in the Federal courts and the difficulty of identifying
those to be superseded, at least before the rules authorized were
promulgated. In addition, there was concern that a provision re-
quiring consistency, quote, "with any law of the United States,"
end quote, such as governed the Court's power to promulgate
equity rules, would engender confusion or controversy as to the
status of the Conformity Act. On the other side, there were doubts
about the constitutionality of a supersession provision, doubts that

were met with the argument that Congress could, itself, repeal un-
designated statutes in futuro by such a provision.

The circumstances that brought forth this sort of provision in the
Federal system have changed. The 1948 revision of the Judicial
Code saw the express repeal of many statutory provisions touching
practice and procedure including, of course, the Conformity Act.
Moreover, Congress is aware of and legislates against the back-
ground of the Federal Rules of Civil Procedure and other superviso-
ry court rules. Indeed, an argument can be made that Congress too
rarely adverts to the possible need for specialized procedure — as op-
posed to what we call the trans-substantive procedure of Federal
rules — when it enacts legislation. To the extent that acts of Con-
gress do contain provisions that are inconsistent with proposed
rules or amendments, it should be possible for the rulemakers, in
cooperation with, for instance, the Congressional Research Service,
to identify those provisions and to recommend that Congress repeal
them. This, I take it, is one of the purposes behind the last sen-
tence of proposed section 2074(a) of the bill.

If, under the existing system, conflicts have rarely arisen be-
tween acts of Congress and subsequently prescribed supervisory
rules, as some maintain, will not such conflicts be rarer still when
the rulemakers are charged to avoid them or to recommend repeal
of the offending statutes? And as to any residual unintended con-
flict, which could be the subject of litigation, it may fairly be asked
how the costs and benefits of the proposed system, no superseding
effect, compare with the comparable net for the present system.

One cost entailed by the present system, by the supersession pro-
vision in 28 U.S.C. section 2072, has become evident in recent
years. The amendment to rule 83, which was just promulgated by
the Supreme Court and which will become effective on August 1,
unless Congress intervenes, continues to require, in terms at least,
consistency only with the Federal Rules of Civil Procedure and not
with statutes in contravention of 28 U.S.C. section 2071. In addi-
tion, the Advisory Committee has twice proposed amendments to
rule 68 of the Federal Rules of Civil Procedure that many people,
including apparently Representative Kastenmeier, believe are in-
consistent with acts of Congress. The sobering fact is that, if rules
or amendments promulgated by the Supreme Court are not blocked
by Congress, and if they are found valid under the Enabling Act —
and none has ever been found invalid — they prevail in any conflict
with existing acts of Congress. Because Congress must consider
that possibility in reviewing proposed rules, one cost of the present
system is to put additional pressure on Congress to step in.

The legal climate has also changed since 1914 or 1934. The Su-
preme Court's decision in the Chadha case has drawn again in
question whether provisions for superseding effect are in fact con-
stitutional. After all, on one view, they purport to authorize the
repeal of a Federal statute, a legislative act, by a process other
than that prescribed by article I of the Constitution.

Can the repeal fairly be attributed to Congress, in the Enabling
Act, when that which is to be repealed is unknown, and, indeed,
unknowable, at the time the Congress acts?

I am not at all sure of the answer, but perhaps such difficult
questions should be avoided. In my view, the burden should be

placed on the rulemakers to demonstrate that the benefits of a pro-
vision for superseding effect outweigh the costs of such a provision.
I doubt that the case can any longer be made. Moreover, even if it
can, difficult constitutional questions remain to be answered before
Congress perpetuates the current system.

I applaud the provision in proposed section 2074(a) requiring the
Supreme Court to:

Transmit with such proposed rule proposed amendments to any law, to the extent
such amendments are necessary to implement such proposed rule or would other-
wise promote simplicity in procedure, fairness in administration, the just determina-
tion of litigation, and the elimination of unjustifiable expense and delay.

I believe, however, that proposed section 2073(a)(1) should be re-
vised so as to make that provision fully effective.

This bill contains a number of safeguards against rulemaking
proposals that are ill-considered or ultra vires, and it should, there-
fore, help to get Congress out of the business of regularly reviewing
supervisory Court rules on the merits. I continue to doubt, howev-
er, that all the procedural safeguards in the world will prevent con-
troversy where it counts, namely in Congress, because the rulemak-
ers' reaction to controversy in the lawmaking process will necessar-
ily continue to be ad hoc. For that reason, I have previously recom-
mended that the Judicial Conference consider the formulation of
standards or guidelines delineating the proper spheres of activity of
its Rules Committees. Professor Remington has made a similar rec-
ommendation. To ensure that this happens, proposed section
2073(a)(1) should require the conference to prescribe and publish
not only the procedures for the consideration of proposed rules
under this section but also standards or guidelines for the exercise
of the power conferred by section 2071 of this title.

In my prepared statement, I note the overlap and potential in-
consistency between the statutory amendments proposed in section
4(a) and the recently promulgated amendment to rule 83. Passing
that, it is not clear to me why notice and comment rulemaking
should not be required of all courts established by act of Congress,
which is, of course, the scope of 28 U.S.C. section 2071. Certainly,
the perceived problems with local court rulemaking have not been
confined to the district courts. I expect that some individuals are
opposed to a notice and comment procedure for any local court
rulemaking. But the rulemakers themselves have imposed that re-
quirement on district courts in the recently promulgated amend-
ment to rule 83. Apart from the Supreme Court, I am not aware of
material differences among courts covered by section 2071 that
make notice and comment rulemaking appropriate for some but
not for others. The procedure may be somewhat more complicated
logistically for courts of appeals and the specialized courts, but that
hardly seems adequate reason to exempt them.

I recognize the delicacy of prescribing rulemaking procedures for
the Supreme Court and would suggest exempting it as has been
done in the amendment to 28 U.S.C. section 2077(b) proposed in sec-
tion 2— which amendment, by the way, I favor. In light, however,
of experience indicating that the Supreme Court could benefit from
advice with respect to its own rules, Congress should urge the
Court, in my view, voluntarily to follow rulemaking procedures re-
quired of other courts.

Finally, in connection with any amendment to section 2071, I ask
you to consider language that would permit a court to act in an
emergency.

The amendment to section 332 proposed in section 4(a)(2) of the
bill, confers power on judicial councils to modify or abrogate only
local rules found inconsistent with rules prescribed under section
2072 of this title. But the amendment to rule 83 recently promul-
gated by the Supreme Court contemplates a much broader power
in the judicial councils. Here again, it seems to me there is room
for mischief as a result of lawmaking processes that are proceeding
in tandem. In any event, the conflict sets in relief the question
whether the councils' power to abrogate local rules should be con-
fined as it is in H.R. 2633.

In my prepared statement, I set forth some of the arguments in
favor of a broad power of review in the councils as well as some of
the arguments against such broad power. In my view, it is impor-
tant for Congress to be aware of these conflicting views and for
Congress to settle what the scope of the councils' power with re-
spect to district court rules should be.

In conclusion, I wish to commend you, Mr. Chairman, and the
members of the subcommittee, for the attention you are devoting to
this important subject. Law reformers have long assured us that
procedure is technical, details, in short, adjective law. The contro-
versy surrounding the Civil Rules Advisory Committee's proposals
to amend rule 68 is only the latest reminder that it is not so. What-
ever differences I may have with you on some of the provisions of
H.R. 2633, I believe that it represents a real advance, and hope,
therefore, that it will receive prompt consideration by Congress.

Thank you.

Mr. Kastenmeier. Thank you very much for that statement. Of
course, your statement in its entirety, together with the appen-
dixes, will be made part of the record.

[The statement of Professor Burbank follows:]

PREPARED STATEMENT

STEPHEN B. BURBANK

ASSOCIATE PROFESSOR AND ASSOCIATE DEAN

UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

BEFORE THE

SUBCOMMITTEE ON COURTS. CIVIL LIBERTIES AND
THE ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES

H.R. 263 3 (THE RULES ENABLING ACT OF 198 5)

JUNE 6. 1985

Mr. Chairman and members of the Subcommittee. I appreciate the
opportunity to testify on H.R. 2633, the Rules Enabling Act of
1985. There is now general recognition that court rules can have
a dramatic effect on the outcome of litigation and hence on rights
recognized by the substantive law. Increasingly in recent years,
commentators have criticized the structure and process of federal
court rulemaking, both supervisory and local, as well as the stand-
ards used in determining the validity of federal court rules.
During the same period. Congress has prevented a number of super-
visory rules and amendments prescribed by the Supreme Court from
taking effect, and on other occasions it has come close to taking

that action. This hearing and the hearings held in previous

2 ...

sessions should provide a basis for an informed decision by

Congress whether, after some fifty years with the modern enabling
acts, the existing system can be improved. I believe that it can
and that this effort is well worth Congress1 attention, if only to
diminish congressional involvement in federal court rulemaking in
the future.

My interest in the subject of federal court rulemaking derives
from teaching and research and has been enhanced by practical
experience in a closely allied area. In 1982, I published a study
of the history of the Rules Enabling Act of 1934 (codified at 28
U.S.C. § 2072) and of the work of the original Advisory Committee

appointed by the Supreme Court to draft the Federal Rules of Civil

3
Procedure. Since that time, I have commented on proposed

4
amendments to the Civil Rules, both in the literature and in a

communication to the Advisory Committee. I have also served as
reporter to the Third Circuit Judicial Council for procedural
rules to implement the Judicial Councils Reform and Judicial
Conduct and Disability Act of 1980, work that led me to publish
studies of procedural rulemaking under that Act. In my testi-
mony today. I will avoid, as much as possible, repeating what I
have said about previous bills to amend the enabling acts.
Thus, for instance, although I continue to doubt the wisdom of

requiring the rulemakers to meet in public, that view is already

8
reflected in the hearing record, and I assume that the Subcom-
mittee holds the contrary view.

Section 2. Rules Enabling Act Amendments

1. The most important issue raised by H.R. 2633, when com-
pared with the antecedent bills introduced by the Chairman on this
subject, concerns the relationship between supervisory rules pre-
scribed by the Supreme Court and existing Acts of Congress. Cur-
rently, most valid supervisory rules supersede previously enacted

9
statutes with which they are in conflict. Proposed § 2072(b)

includes a provision that supervisory rules not "supersede any
provision of a law of the United States." The proposed change is
an important one, and it deserves close attention.

The provision for superseding effect in the enabling acts
traces its origins to hearings on the first bill in the long cam-
paign by the American Bar Association to secure for the Supreme
Court supervisory rulemaking power in actions at law. Briefly,
a provision of that sort was deemed important because of the large

number of federal statutes that regulated practice and procedure
in the federal courts and the difficulty of identifying those to
be superseded, at least before the rules authorized were promul-
gated. In addition, there was concern that a provision requiring
consistency "with any law of the United States." such as governed
the Court's power to promulgate Equity Rules, would engender con-
fusion or controversy as to the status of the Conformity Act. On
the other side, there were doubts about the constitutionality of a
supersession provision, doubts that were met with the argument
that Congress could itself repeal undesignated statutes .in f uturo
by such a provision.

The circumstances that brought forth this sort of provision in
the federal system have changed. The 1948 revision of the Judi-
cial Code saw the express repeal of many statutory provisions
touching practice and procedure including, of course, the Conform-
ity Act. Moreover, Congress is aware of, and legislates against
the background of, the Federal Rules of Civil Procedure and other
supervisory court rules. The practical problem that existed
in 1914, when the supersession provision was debated, and in 1934,
when the predecessor of 28 U.S.C. § 2072 was enacted, thus is of
greatly diminished dimensions. Indeed, an argument can be made
that quite the reverse problem exists, that Congress too rarely
adverts to the possible need for specialized procedure -- as op-
posed to the trans-substantive procedure of Federal Rules -- when

12
it enacts legislation. To the extent that Acts of Congress do

contain provisions that are inconsistent with proposed rules or

amendments, it should be possible for the rulemakers, in coopera-

tion with, for instance, the Congressional Research Service, to
identify those provisions and to recommend that Congress repeal
them. This, I take it, is one of the purposes behind the last
sentence of proposed § 2074(a) in Section 2 of the bill.

I expect that those who favor the retention of a provision for
superseding effect will argue that even careful research will not
disclose every statute with which a proposed rule or amendment is
arguably inconsistent and that. therefore, such questions may
become a fertile source of litigation. It may also be argued that
the need to resort to existing supersession provisions has not
often arisen, the point being that they are a hedge against the
unintended that have little practical (as opposed to symbolic)
importance.

The arguments are, of course, in tension. If under the exist-
ing system conflicts have rarely arisen between Acts of Congress
and subsequently prescribed supervisory rules, will not such
conflicts be rarer still when the rulemakers are charged to avoid
them (or to recommend repeal of the offending statutes)? And as
to any residual unintended conflict, it may fairly be asked how
the costs (including a "mistake" by the rulemakers that can be
remedied by legislation they recommend) and benefits of the pro-
posed system (no superseding effect) compare with the comparable
net for the present system.

One cost entailed by the supersession provision in 28 U.S.C.
§ 2072 has become evident in recent years. In 1983 the Civil

Rules Advisory Committee proposed an amendment to Rule 83 that, in

14
my view, was inconsistent with § 2071. Although the amendment

to Rule 83 promulgated by the Supreme Court on April 29, 1985
(effective August l unless Congress intervenes) does not include
the originally proposed provision for local rules inconsistent
with the Federal Rules of Civil Procedure, it is nonetheless trou-
blesome. Apart from the basic guestion whether Rule 83 is invalid
because not a "general rule" within the meaning of § 2072, the
Court's amendment continues to require, in terms at least, consis-
tency only with the Federal Rules of Civil Procedure, in contra-
vention of 28 U.S.C. § 2071. Moreover, the rulemakers contemplate
greater power in the judicial councils than exists under current
law or than would be conferred by Section 4(a) of H.R. 2633.
Finally, there are other differences between Rule 83 as amended by
the Court and the bill, and these differences would be magnified
if changes I suggest were adopted.

In addition, the Advisory Committee has twice proposed amend-
ments to Rule 68 that many people believe are inconsistent with
Acts of Congress. The sobering fact is that, if rules or
amendments promulgated by the Court are not blocked by Congress,
and if they are found valid under the Enabling Act (none has ever
been invalidated), they prevail in any conflict with existing Acts
of Congress. Because Congress must consider that possibility in
reviewing proposed rules, one cost of the present system is to put
additional pressure on Congress to step in.

The legal climate has also changed since 1914 or 1934. The
Supreme Court's decision in Chadha has drawn in question whether
provisions for superseding effect are in fact constitutional.
After all, on one view, they purport to authorize the repeal of

federal statutes, a legislative act. by a process other than that

17
prescribed by Article I of the Constitution. Can the repeal

fairly be attributed to Congress (in the enabling act) when that
which is to be repealed is unknown at the time Congress acts?
Does it make a difference if one concludes that the power with
respect to supervisory rules is shared by Congress and the Supreme
Court and on that hypothesis does not require legislative authori-
zation for its exercise? Does Chadha foreclose Congress from
ceding, as part of an otherwise valid delegation, its supremacy in
an area of shared power (retaining all the while the power to
reassert it)? These are difficult questions that should perhaps
be avoided.

In my view, the burden should be placed on the rulemakers t
demonstrate that the benefits of a provision for superseding effect
outweigh the costs of such a provision. I doubt that the case can
any longer be made. Moreover, even if it can, difficult constitu-
tional questions remain to be answered before Congress perpetuates
the current system.

Assuming a decision is made to assert the supremacy of stat-
utes, the question remains whether the language in the bill is the
best formulation for the purpose. Although the alternative "not
inconsistent with any law of the United States." has a pedi-

1 8

gree, it should not for that reason be preferred. Indeed, the
word "law" in both formulations may be undesirably ambiguous, and
if it is retained, the legislative history should clarify what is
intended. The word obviously imports statutes. Does it als
include treaties? Valid administrative regulations? Apart fr

o
om

that matter, an argument in favor of the "not supersede" vs. "not
inconsistent with..." formulation is that it would clearly permit
the ruleraakers to propose rules or amendments that would be effec-
tive in cases not covered by an inconsistent provision of "law"
(as well as to propose legislation designed to remove the incon-
sistency). Particularly if. as I suggest. Congress pays more
attention to the need for procedure tailored to substantive poli-
cies. that flexibility is important.

Finally, whatever formulation is chosen denying supervisory
rules superseding effect, account must be taken of proposed super-
visory rules that have been transmogrified into statutes (e.g.,
the Federal Rules of Evidence and Federal Rule of Civil Procedure
4). Assuming that Congress may constitutionally provide for their
supersession by court rules, an easier proposition to carry than
that addressed earlier, I would suggest identifying them and so
providing in a discrete section of the bill.

2. I applaud the provision in proposed § 2074(a) requiring
the Supreme Court to "transmit with such proposed rule proposed
amendments to any law, to the extent such amendments are necessary
to implement such proposed rule or would otherwise promote simpli-
city in procedure, fairness in administration, the just determina-
tion of litigation, and the elimination of unjustifiable expense
and delay." I believe, however, that proposed § 2073(a)(1) should
be revised so as to make that provision fully effective.

H.R. 2633 contains a number of safeguards against rulemaking
proposals that are ill-considered or ultra vires, and it should
therefore help to get Congress out of the business of regularly

reviewing supervisory court rules on the merits. I continue to
doubt, however, that "all the procedural safeguards in the world
will prevent controversy where it counts -- in Congress -- because

the rulemakers' reaction to controversy in the lawmaking process

19
will necessarily continue to be ad hoc . " For that reason, I

have recommended that the Judicial Conference "consider the formu-
lation of standards or guidelines delineating the proper spheres

20
of activity of i*ts Rules Committees." Professor Remington has

mad*e a similar Recommendation. To ensure that this happens,
proposed § 2073(a)(1) should require the Conference to prescribe
and publish not only "the procedures for the consideration of
proposed rules under this section" but also "standards or guide-
lines for the exercise of the power conferred by section 2072 of
this title."

The sentence in question in proposed § 2074(a) is addressed in
part to the problem of existing inconsistent statutes, but it does
not confine recommendations for legislation to that situation. My
proposal would "permit the rulemakers to make recommendations for
legislation regarding matters that have been identified as falling
beyond the rulemaking power. Indeed, there is much to be said for
a procedure that would permit the submission to Congress of all
provisions in the area of procedure, broadly defined, that are
thought to be needed, divided into two groups: those subject to

congressional review and those requiring congressional approval

[ legislation] . "

Section 3. Compilation and Review of Local Rules

I am also pleased to note the proposed amendment to the fourth
paragraph of 28 U.S.C. § 331 contained in Section 3. The amend-
ment would solve a problem that currently exists in overseeing the

implementation of the Judicial Councils Reform and Judicial Conduct

23
and Disability Act of 1980.

Section 4. Rules by District Courts and Orders by Circuit
Judicial Councils

1. I have already referred to the overlap and potential in-
consistency between the statutory amendments proposed in Section
4(a) and the recently promulgated amendment to Rule 83. In my
view, the second sentence of the proposed amendment of 28 U.S.C.
§ 2071 should include reference to the Judicial Conference, which,
under the proposed amendment to 28 U.S.C. § 331 in Section 3.
would have the power to modify or abrogate rules prescribed under
§ 2071. I take it that this sentence is not intended to foreclose
(if it could) invalidation by a court in litigation, although that
perhaps should be clarified.

More fundamentally, it is not clear to me why the requirements
of this proposed amendment of § 2071 should not be applied to "all
courts established by Act of Congress," the scope of that section.

Certainly, the perceived problems with local court rulemaking have

24
not been confined to the district courts. I expect that some

individuals are opposed to a notice and comment procedure for any

local court rulemaking. But the rulemakers themselves have imposed

that requirement on district courts in the recently promulgated

amendment to Rule 83. Apart from the Supreme Court, I am not

aware of material differences among courts covered by § 2071 that
make notice and comment rulemaking appropriate for some but not
for others. The procedure may be somewhat more complicated,
logistically, for courts of appeals and the specialized courts.
But that hardly seems adequate reason to exempt them. I recognize
the delicacy of prescribing rulemaking procedures for the Supreme
Court and would suggest exempting it as has been done in the
amendment to 28 U.S.C. § 2077(b) proposed in Section 2 (which I

favor). In light, however, of experience indicating that the

Court could benefit from advice with respect to its own rules.

Congress should urge the Court voluntarily to follow rulemaking
procedures required of other courts.

Finally, I ask you to consider, in connection with any amend-
ment to § 2071, language that would permit a court to act in an

26
emergency.

In sum, I would suggest replacing the language in Section

4(a)(1)(B) of the bill with the following:

Except as provided hereafter, any such rule
prescribed by a court other than the Supreme
Court shall be made or amended only after giving
appropriate public notice and an opportunity
for comment. Such rule so made or amended
shall take effect upon the date specified by
the prescribing court. A rule or amendment of
a district court shall remain in effect unless
modified or abrogated by the judicial council
of the relevant circuit or the Judicial Confer-
ence, or held invalid by a court. Any other
such rule or amendment shall remain in effect
unless modified or abrogated by the Judicial
Conference, or held invalid by a court. Copies
of rules so made or amended by a district court
shall be furnished to the judicial council, and
copies of all rules so made or amended shall be
furnished to the Administrative Office of the
United States Courts and made available to the
public.

Where the prescribing court determines that
there is an immediate need for a rule or amend-
ment, it may proceed without first affording
notice and an opportunity for comment; provided,
however, that it promptly thereafter affords
such notice and opportunity for comment.

2. The amendment to § 332 proposed in Section 4(a)(2) con-
firms what the section-by-section analysis of H.R. 6344 suggests,

namely that "[t]he circuit review authority parallels that given

to the Judicial Conference." in the sense that it is power to

modify or abrogate only local rules "found inconsistent" with
"rules prescribed under Section 2072 of this title." But the

amendment to Rule 83 proposed in 1983. and that recently promul-

2 8
gated by the Court, contemplates a much broader power. Here

again, there is room for mischief as a result of lawmaking pro-
cesses proceeding in tandem. In any event, the conflict sets in
relief the question whether the councils' power to abrogate local
rules should be confined as it is in H.R. 2633.

Those in favor of broader power may argue that there should be
a check on district court rules that, although not inconsistent
with supervisory rules, are nonetheless unwise (or invalid). They
also may note that the 'limited power conferred by this bill would
not permit a council to achieve intracircuit ( interdistrict ) uni-
formity on matters where it was thought important.

Those opposed to broad power in the councils are likely to
argue that councils have been known to act unwisely and to point
out that the amendment to Rule 83, contemplating such broad power,
provides no procedural safeguards against hasty or ill-informed
council action. They may also note that, notwithstanding the

reorganization of the judicial councils in 1981, those bodies are
still dominated by court of appeals judges. Broad control of
district court rules by court of appeals judges was rejected in
1937, 29 and, it might be argued, it should be rejected today.
Finally, as to intracircuit uniformity, the opponents of broad
power in the councils might respond that, if uniformity has reached
that level of consciousness, it should be pursued through national
(supervisory) rules.

In the circumstances, it is important for Congress to be aware
of these conflicting views and to settle what the scope of the
councils' power with respect to district court rules should be.

3. I support the proposed amendment to 28 U.S.C. § 372(c)(ll)
requiring notice and comment in connection with rules prescribed by
the judicial councils and the Conference for the conduct of pro-
ceedings under § 372(c). In addition, the councils should be
encouraged to use an advisory committee in considering disciplin-
ary rules or amendments. The Third Circuit Judicial Council has
used the committee required by § 2077(b) for that purpose.

In conclusion, I wish to commend you, Mr. Chairman, and the
members of the Subcommittee, for the attention you are devoting
to this important subject. "Law reformers have long assured us
that procedure is technical, details -- in short, adjective
law."3L The controversy surrounding the Civil Rules Advisory
Committee's proposals to amend Rule 68 is only the latest reminder

that it is not so. Whatever differences I may have with you on
some of the provisions of H.R. 2633. I believe that it represents
a real advance and hope, therefore, that it will receive prompt
consideration by Congress.

FOOTNOTES

1. See generally J. Weinstein. Reform of Court Rule-Making
Procedures (1977); W. Brown. Federal Rulemaking: Problems
and Possibilities (1981);. Burbank. The Rules Enabling Act
of 1934. L30 U. Pa. L. Rev. 1015 (1982).

Federal "supervisory" court rulemaking refers to the
formulation of prospective rules by the Supreme Court to
govern proceedings in the lower federal courts. Federal
"local" court rulemaking refers to the formulation of
prospective rules to govern proceedings in the prescribing
court .

2. see Rules Enabling Act: Hearings Before the Subcomm. on
Courts. Civil Liberties, and the Admin, of Justice of the
House Comm. on the Judiciary. 98th Cong., 1st & 2d Sess.
(1985) [hereinafter cited as Hearings! .

3. Burbank, supra note 1.

4. Burbank, Sanctions in the Proposed Amendments of the Federal
Rules of Civil Procedure: Some Questions About Power, 11
Hofstra L. Rev. 997 (1983).

5. Attachment A.

6. Burbank, Procedural Rulemaking Under the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980. 131
U. Pa. L. Rev. 283 (1982) [hereinafter cited as Procedural

Rulemaking] ; Burbank, The Federal Judicial Discipline Act: Is

Decentralized Self -Regulation Working?, 67 Judicature 183
(1983); see also Attachment B.

7. See Hearings , supra note 2, at 64-67, 204-26.

8. id. at 213-15.

9. See, e.g. . 28 U.S.C. §§ 2072, 3771 (1982), But see 28 U.S.C.
§ 2075 (1982). For the reasons Congress determined not to
continue the superseding effect of bankruptcy rules, see
Hearings , supra note 2, at 229 n.l. Care should be taken not
to reverse that policy judgment inadvertently, as might have
occurred had H.R. 6344, 98th Cong., 2d Sess. (1984) been
enacted. See id . § 2(a).

10. For the history, see Burbank, supra note 1, at 1050-54.

11. See Califano v. Yamaski, 442 U.S. 682, 698-701 (1979).

12. To that end, in considering proposed legislation. Congress
should require a Procedural Impact Statement, the purpose of
which would be to ensure that existing federal procedure
adequately will serve a bill's substantive policies.

13. For cases involving a conflict, see W. Brown, supra note 1.
at 99-100; 2 J. Moore. Moore's Federal Practice 1[ 1.02[5]
(1984) .

14. See Attachment A.

15. See, e.g.. Hearings . supra note 2, at 139-48.

16. See INS v. Chadha, 462 U.S. 919 (1983). Of course,
constitutional doubts were expressed as early as 1914, see
supra at 3, and they continued to be voiced. E.g., 374 U.S.
865 (1963) (Black and Douglas. J.J.); 383 U.S. 1032 (1966)
(Black, J.); Clinton, Rule 9 of the Federal Habeas Corpus
Rules: A Case Study on the Need for Reform of the Rules
Enabling Acts, 63 Iowa L. Rev. 15. 64-77 (1977).

17. "Amendment and repeal of statutes, no less than enactment,
must conform with Art. I." Chadha. 462 U.S. at 954 (footnote
omitted). "There is no provision allowing Congress to repeal
or amend laws by other than legislative means pursuant to Art.
I." Id. n.18. "The explicit prescription for legislative
action contained in Art. I cannot be amended by legislation."
Id.. at 958 n.23. "But the steps required by Art. I, §§ 1, 7
make certain that there is an opportunity for deliberation and
debate. To allow Congress to evade the strictures of the
Constitution and in effect enact Executive proposals into law
by mere silence cannot be squared with Art. I." Id.

18. See supra at 3.

19. Burbank, supra note 1, at 1195.

20. Id., (footnote omitted).

21. See Hearings, supra note 2, at 267-68.

22. Burbank, supra note 1, at 1195 n.775.

23. See Attachment B at 10.

24. See J. Weinstein. supra note 1, at 117-45.

25. See , e.g.. Hearings , supra note 2, at 37 n.3.

26. Cf. J. Weinstein, supra note 1, at 151 ("To meet emergency
situations a court should have the power to adopt a local rule
for no more than one year.").

27. 130 Cong. Rec. E4105-06 (1984); Hearings , supra note 2, at
180.

28. See Hearings . supra note 2, at 216-17; Attachment A at 6; 105
F.R.D. 179, 227 (1985).

29. See Attachment A at 6.

30. See Burbank. Procedural Rulemaking, supra note 6. at 341-42;
Attachment B at 10.

31. Burbank, Afterwords: A Response to Professor Hazard and a
Comment on Marrese, 70 Cornell L. Rev. 659. 662 (1985).

Attachment A

UNIVERSITY of PENNSYLVANIA

PHILADELPHIA 19104

The Law School February 27, 1984

3400 Chestnut Street 14

Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
Washington, D.C. 20544

Re: Proposed Amendments to Federal Rule of Civil Procedure 83

To the Committee:

I apologize for the delay in submitting comments on the
proposed amendments that were disseminated in August. I
understand from Professor Miller that the proposed amendment to
Rule 68 does not require additional comment at this time.
Accordingly, I will confine my observations to the Advisory
Committee's proposals concerning Rule 83.

I. Background. Original Rule 83

At the outset, I should elaborate my doubts concerning the
validity of Rule 83 as it presently reads (the Rule has not been
amended) . S_£_£ Burbank, "The Rules Enabling Act of 1934," 130 U.
Pa. L. Rev. 1015, 1193 n.763 (hereinafter cited as "REA");
Burbank, "Sanctions in the Proposed Amendments to the Federal
Rules of Civil Procedure: Some Questions About Power," 11
Hofstra L. Rev. 997, 998 n.2 (1983) (hereinafter cited as
"Sanctions"). The Enabling Act (see now 28 U.S.C. § 2072)
authorized the Supreme Court to make law "by general rules."
Congress' purposes in making the grant, and in using the words in
question, were made explicit in the Senate Report on a bill that,
with the exception of one word, was identical to the 1934 Act.
S_££. Burbank, "REA," sjiera., at 1083-89, 1098-1106.

The purposes of the proposed legislation, embodied in
this section, are manifest. But it may be well to put those
purposes into definite expression. They are:

First, to make uniform throughout the United States the
forms of process, writs, pleadings, and motions and the
practice and procedure in the district courts in actions at
law.. It is believed that if this were its only advantage
that lawyers and litigants would find, in uniformity alone, a
tremendous advance over the present system.

Second, these general rules, if wisely made, would be a
long step toward simplicity, a most desirable step in view of
the chaotic and complicated condition which now exists.

S. Rep. No. 1174, 69th Cong., 1st Sess. 1-2 (1926) (emphasis
added) .

Shortly after the Act was passed, Professor Sunderland
expressed the view that rules requiring strict conformity to
state law were within the statutory authorization (and should be
preferred to rules prescribing uniform federal procedure) . S_££.,
e.g. . Sunderland, "The Grant of Rule-Making Power to the Supreme
Court of the United States," 32 Mich. L. Rev. 1116 (1934);
Burbank, "REA," supra, at 1135. In arguing against Sunderland's
position that "the Court would be complying with [Section 1 of
the Enabling Act] if it issued a so-called general rule that the
rules of practice in each district should conform to the local
state practice," William D. Mitchell, the Chairman of the
Advisory Committee, observed: "I have never supposed that this
is what the statute means. It used the term 'general rules',
which seems to me to contemplate rules that prevail generally in
all the district courts, that is, a uniform set of rules
applicable generally in each of the districts. I cannot read the
statute in any other way." Letter from William D. Mitchell to
Edson R. Sunderland (May 23, 1935) (Clark Papers, Yale University
Library, box 108, folder 41). 1/ Thereafter, Sunderland modified
his strong preference for conformity but not his basic
interpretive position. See Sunderland, "Character and Extent of
the Rule-Making Power Granted United States Supreme Court and
Methods of Effective Exercise," 21 A.B.A.J. 404 (1935).

At its first meeting the original Advisory Committee
considered the matter:

The first matter considered was the meaning of the term
'general rules' as used in the statute, and whether the
statute contemplates that all rules promulgated shall operate
uniformly in all the districts, or whether the Court may
promulgate some rules for some districts and other rules for
other districts. In this connection the discussion covered
the question of conformity between state and federal
practice. After full discussion, it was the unanimous
opinion of those present that the statute contemplates that
in sofar as unified rules are promulgated they must operate
uniformly in all the districts, that it is permissible under
the statute that the rules may leave untouched certain fields
not covered, in which case the existing system for the state
procedure may apply, and that it is permissible under the
statute, where the subject matter is not dealt with or cover-

1/ "My impression is that the word 'general' in the statute
means precisely what it says and that the rules are to be general
in the sense that there is to be a single set of rules generally
applicable in each federal district, and that to vary the rules
in different districts according to local state practice is not
in the statutory sense a system of general rules." Id.

ed by the rules, to provide generally that in sofar as any
subject is not covered by the rules the state practice may be
followed.

Summary of Proceedings of the First Meeting of Advisory
Committee. Held in the Federal Building at Chicago, June 20. 1935
(1 Communications of the Advisory Committee on Rules for Civil
Procedure for the District Courts of the United States, Harvard
Law School Library; Clark Papers, box 108, folder 42 & box 104,
folder 35) .

The Committee thus appears to have accepted Mr. Mitchell's
(patently correct) view that the Act called for uniform federal
rules rather than conformity to state law but as well to have
recognized that, as Sunderland suggested, there might be some
matters as to which state law should govern. The problem, for
one interested in a coherent and consistent interpretation cf
"general rules", lies in the Committee's ultimate position,
evident from the rules finally approved, that it was permissible
to require conformity to state law in discrete Federal Rules,
rather than simply to leave the matter "untouched", i.e., leave
it to other sources of law. In that regard, it is difficult for
these purposes to distinguish Rule 83 from Federal Rules that
require conformity. S_e_e_, e.g. . Rules 64 and 69. Of course, that
says nothing about the validity either of Rule 83 or of Rules
requiring conformity. And, as the above suggests, I do not
believe that either can be squared with the language of the
statute, read in light of its purposes. Whereas, however, the
original departures, if such they were, made little difference,
the proposed amendments to Rule 83 resist that conclusion.

At the time the original Advisory Committee was at work,
there was considerable doubt about the effect of the Enabling Act
or of rules promulgated pursuant to it on the Conformity Act
(which was not formally repealed until 1948). Moreover, then as
now, there was considerable doubt about the reach of the Rules of
Decision Act. In such circumstances, a direction to follow state
law in a few discrete Federal Rules was no more likely to evoke
cries of protest for violating the Act's requirement of "general
rules" than it was to evoke such cries for making a choice
properly belonging to Congress (violating the Act's second
sentence). See Burbank, "REA," supra, at 1147 & n.576.

Similarly, to the extent that Rule 83 merely incorporated
existing statutory authority to prescribe local rules, it was
unlikely to be challenged. The Advisory Committee was of the
view that it was free to incorporate in the Federal Rules
existing federal law from cases and statutes even if beyond its
authority to prescribe in the first instance under the Act. See
Burbank, "REA," sjipj^., at 1147-57. The Advisory Committee's Note
to Rule 83 suggests that what I have called the incorporation
principle was at work here:

This rule substantially continues U.5.C., Title 28, §731
(Rules of practice in district courts) with the additional
requirement that copies of such rules and amendments be
furnished to the Supreme Court of the United States. See
Equity Rule 79 (Additional Rules by District Court) . With
the last sentence compare United States Supreme Court
Admiralty Rules (1920) , Rule 44 (Right of Trial Courts to
Make Rules of Practice) (originally promulgated in 1842) .

It is important to note, however, that Rule 83 departed from 28
U.S.C. § 731 in failing to require that local rules be consistent
with "any law of the United States" and that the last sentence of
the Rule was entirely new. More precisely, Admiralty Rule 44 and
its forebears themselves incorporated statutory authority. £££.
Act of May 8, 1792, ch. 36, § 2, 1 Stat. 275, 276; R. S. § 913.
I am not aware of any statute that Rule 83, in its last sentence,
could be said to incorporate. Indeed, there was a statute, the
Conformity Act, that pointed in the opposite direction, and it
was precisely the purpose of the last sentence of Rule 83 to
"prevent being thrown back on the Act in case it should be found
that there was still a place not covered by the Rules." "'Open
Forum1 Discussion of Proposed Rules of Civil Procedure," 23
A. B.A.J. 965 (1937). See also Advisory Committee Note to Rule
2. As Mr. Mitchell wrote to Dean Clark:

We have in effect, under Rule [83], abolished the conformity
act by providing that in all matters not provided for by the
rule promulgated by the Supreme Court or the local rules con-
sistent therewith adopted by the district courts, the
district courts may regulate their practice as they choose
and not be required to adhere to the conformity act.

Letter from William D. Mitchell to Charles E. Clark (October 13,
1937) (Clark Papers, box 111, folder 58).

Whether or not the Court had the power to "abolish the conformity
act" through a provision like the last sentence of Rule 83 - and
I would argue that it did not because the provision is not a
"general rule" - the damage, if any, was short-lived. With the
formal repeal of the Conformity Act in 1948, the district courts
could rely on their Article III power to formulate rules of
procedure in the context of adjudication, subject to the Rules of
Decision Act. 2/

We are almost ready to turn to the proposed amendments to
Rule 83. First, however, it is useful to pursue one matter
raised above, as the analysis tends to confirm the broad conclu-
sion of invalidity of the original Rule and to reaffirm the
importance of facing questions of power at this time.

2/ For a perplexing, but surely academic, problem of federalism
posed by the last sentence of Rule 83 (assuming it is valid) , see
Burbank, "REA," supra, at 1193 & n.763.

By the terms of the Enabling Act, as now of 28 U.S.C. § 2072,
a valid Federal Rule supersedes a (previously enacted) federal
statute with which it is in conflict. It has been noted above
that Rule 83 was in conflict with 28 U.S.C. § 731 insofar as the
latter required local rules to be consistent with statutes
whereas Rule 83 did (and does) not impose that requirement.
Indeed, the Advisory Committee's Note suggests an intent to
supersede (by "substantially" continuing) § 731. If Rule 83 is
valid, local rules need not be consistent with (previously
enacted) federal statutes. But, we are told, local rules must be
consistent with federal statutes. See Colgrove v. Battin . 413
U.S. 149, 161 n.18 (1973); 12 C. Wright & A. Miller, Federal
Practice and Procedure § 3153 (1973). The reason is unclear,
unless Rule 83 is, as I have argued, invalid. 3_/

If Rule 83 is to be amended, it should at least faithfully
incorporate the provisions of 28 U.S.C. § 2071.

II. The Proposed Amendments

If I am correct that Rule 83 is not a "general rule" and that
(with the exception of the question of superseding effect) the
Rule's first sentence was intended to incorporate federal
statutory law, the proposed amendments present a classic problem
of that technique:

[E]ven where the federal law incorporated in a Federal
Rule is contained in an Act of Congress, the technique can
cause problems under the Act. For if the need arises to
change the Rule, there is doubt whether change can be
effected by the rulemakers or must be made, if at all, by
Congress .

Burbank, "REA," supra, at 1155-56.

In this instance, there are good reasons to prefer Congress to
the rulemakers as lawmaker in the areas touched by the proposed
amendments .

First, Congress is presently considering reform of federal
court rulemaking. See H.R. 4144, 98th Cong., 1st Sess. (1983).
Although Representative Kastenmeier ' s bill focuses on supervisory
court rulemaking, section 3 deals with local court rules. Thus,

2J One might argue in response that the 1948 revision that gave,
us 28 U.S.C. § 2071 constitutes a subsequent superseding
statute. But that argument is foreclosed by § 2072's provision
to the effect that "[n]othing in this title, anything therein to
the contrary notwithstanding, shall in any way limit, supersede,
or repeal any such rules heretofore prescribed by the Supreme
Court."

the argument from legislative inertia often made by those who
favor court rulemaking over legislation is inapposite. Indeed,
on questions of rulemaking process, not even the argument from
institutional competence favors the rulemakers.

Second, the proposed amendments assume power in a judicial
council to "nullify a local rule at any time." As indicated in
the enclosed letter commenting on Representative Kastenmeier 's
bill, the existence of such power is by no means clear. In that
regard, it may be more than a matter of historical interest to
note that in 1S37 the Advisory Committee and the Court finally
rejected an alternative version of [what became] Rule 83, twice
published, that would have required "the concurrence of a
majority of the circuit judges for the circuit" in local court
rules. See American Bar Association, Cleveland Institute on
Federal Rules 357 (1938) . When the judicial councils were
created in 1939 . they consisted exclusively of circuit judges.
Other problems of interpretation aside, in making a general grant
of authority to the councils in section 306 of the Administrative
Office Act of 1939 (Act of Aug. 7, 1939, Pub. L. No. 76-299,
§ 306, 53 Stat. 1223, 1224), should Congress be thought sub
silentio to have overruled the Court's explicit choice not to
invest the circuit judges with a general veto power over local
rules? 4/ Finally in this aspect, although H.R. 4144 is
ambiguous on these matters, there is at least a strong
possibility that the scheme of review it contemplates is
inconsistent with that proposed in the amendments to Rule 83.
Passing the problem of determining which should control if both
become effective (see below) , would it not be better for Congress
to decide upon the appropriate review mechanism and, to the
extent that the judicial councils or the Judicial Conference is
part of that mechanism and there is doubt about the adequacy of
existing grants of power for this purpose, to amend 28 U.S.C.
§ 331 or § 332?

4/ This argument speaks only to the proper interpretation of
Section 306. The general grant of authority in that section was
codified, with "changes in phraseology," at 28 U.S.C. § 332 and
was "essentially recodified" in 1980. See H.R. Rep. No. 96-1313,
96th Cong., 2d Sess. 9 (1980). As suggested in my letter to
Representative Kastenmeier, I believe that § 332 probably does
authorize a council to deal with local rules in extraordinary
situations implicating the administrative concerns with which
that section is instinct, but the Advisory Committee appears to
attribute to the councils far greater power (i.e., to abrogate a
local rule for invalidity, for inconsistency with the Federal
Rules, for failure "to promote inter-district uniformity and
efficiency," and for "undermin [ing] the basic objectives of the
Federal Rules.") Of course, Congress can amend § 332, and it may
wish to do so, particularly now that the councils include
district court judges. See below.

48-930 O— 85 2

Third, the proposed amendment that would permit, under
certain conditions and for a limited time, the adoption of a
local rule that is inconsistent with a Federal Rule renders the
consideration of questions of power inescapable. 28 U.S.C.
§ 2071 requires that local court rules be consistent with Federal
Rules (as well as with statutes) . Unless one is willing to
reason that amended Rule 83 would be a Federal Rule and that a
local court rule inconsistent with, say, Rule 30, would
nonetheless be saved by consistency with its provision for
inconsistency - and I am not - there is a conflict between the
statute and the proposed amendment. If the proposed amendment is
valid, by reason of § 2072 it supersedes § 2071. But if that is
the case, one may well ask again why the Supreme Court and dis-
tinguished commentators have held that local rules must be
consistent with statutes. There is, I think, no satisfactory
analytical answer.

Those who would distinguish the two requirements (consistency
with statutes and consistency with Federal Rules) on grounds of
importance or institutional competence and who are anxious that
experimentation proceed, I would urge to pause. In the last two
decades, we have gradually come to realize that our system of
allegedly uniform and allegedly simple trans-substantive federal
rules is no longer, if it ever was, adequate for the litigation
in federal courts. The rulemakers' response has been a series of
amendments, typically of narrow focus, one recent set of which
was described by Justice Powell as "tinkering changes." See
Burbank, "Sanctions," supra . at 998 & n.3. With these proposed
amendments to Rule 83, the rulemakers carry us further away from
the procedural philosophy that animated the 1934 Act and the
original Federal Rules. That is not necessarily bad; indeed, it
is almost surely inevitable. But would it not be preferable to
know where we are going?

Neither judges nor those who write about their work product
have shown much interest in the jurisprudence of federal
court rulemaking. As a result, we lack an accepted frame-
work within which to evaluate prospective procedural rules.
Moreover . . .our impoverishment is particularly acute with
respect to local rulemaking. . . Unless rulemakers can be
brought to an articulated, or at least articulable, position
on such issues as level of detail, uniformity, and rulemaking
power, we are doomed to a regime characterized by ad hoc
justification on the one hand and ad hoc repudiation on the
other.

Burbank, "Procedural Rulemaking Under the Judicial Councils
Reform and Judicial Conduct and Disability Act of 1980," 131 U.
Pa. L. Rev. 283, 309 (1982).

Sooner or later, we must rethink federal procedure, and if,
as I expect, the product of that exercise will look radically
different from what was contemplated in the Enabling Act, what

was given us in 1938, and indeed what we have today, Congress
should play a part. I believe that the time has arrived, and
that, apart from questions of power, Congress' involvement would
be useful. Indeed, it may take a congressional initiative to
stimulate sustained thought.

I hope that these comments are helpful.

Sincerely,

Stephen B. Burbank

Associate Professor and Associate

Dean

SBB/ec
Enc.

Attachment B

PREPARED STATEMENT
OF

STEPHEN B. BURBANK
ASSOCIATE PROFESSOR AND ASSOCIATE DEAN
UNIVERSITY OF PENNSYLVANIA LAW SCHOOL

BEFORE THE

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE
ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES HOUSE OF REPRESENTATIVES

ON
JUDICIAL DISCIPLINE

APRIL 25. 1985

Mr. Chairman and Members of the Subcommittee. I appreciate the
invitation to testify before the Subcommittee, and I hope that my
testimony will be helpful in the important enterprise of overseeing
the implementation of the Judicial Councils Reform and Judicial Con-
duct and Disability Act of 1980 (the "Act"), Three and one half
years have passed since the Act became effective. During that period,
the media have drawn the public's attention to allegations of mis-
conduct against a number of federal judges, and questions have been
raised about the adequacy of the Act's implementation by the judi-
ciary. The Subcommittee is to be commended for fulfilling Congress'
commitment to "vigorous oversight."-7 for talcing the initiative to
determine whether the Act's experiment in judicial self -regulation
is working. You will no doubt hear from other witnesses that, on
the whole, it is. My basic point is that the public, less conversant
with experience under the Act. less aware of the extraordinary bur-
dens under which the federal judiciary labors, and less confident of
the integrity and good faith of the members of that group, has pre-
cious little reason to assent to that conclusion.

My interest in the Act is both scholarly and practical. As a
scholar, I have been concerned with rules of procedure formulated by
the federal judiciary pursuant to congressional delegation.-7 The
practical interest derives from my service as co-reporter for the
original rules of the Third Circuit Judicial Council to implement
the Act and as reporter for the Council's 1984 amendments. The two
interests converged in articles that I have written on the implemen-
tation of the Act nationally, a long study in the University of Penn-

sylvania Law Review- and a shorter version in Judicature. -

As the members of the Subcommittee well know, the Act is the
product of a series of compromises, both great and small. A great
compromise was achieved when Congress agreed to drop removal as a
sanction and another when a centralized disciplinary model typical
of the States was rejected in favor of the decentralized administra-
tive structure of the federal judiciary. Congress recognized, how-
ever, that the disciplinary powers of the judicial councils under
that structure were in doubt, and that occasional exercises of power
by the councils had been thought by some to threaten the independence
of individual federal judges. Moreover, by 1980 Congress had evi-
dence, in existing council rules relating to judicial conduct and
disability, of "glaring disparities between circuits, both with re-
gard to the specific procedures they established] and the elements
of process they cover [ed]."— Accordingly, in the Act. Congress
prescribed to a certain extent the procedures to be followed in re-
viewing and resolving complaints. Moreover, extending an invitation
that it plainly expected to be accepted. Congress not only authorized
the judicial councils of the circuits to promulgate rules of proce-
dure implementing the Act, but it also specified rights that must be
accorded in any such rules to a judge or magistrate who is the sub-
ject of a complaint and to a complainant.— Finally, Congress

endowed the Judicial Conference with power to modify any rule prom-

. . . 7/

ulgated by a judicial council and itself to prescribe rules.—

In my studies of the implementation of the Act by the judicial
councils, I concluded that (1) it was too early to maKe a definitive
assessment of self -regulation under the Act. but that (2) the coun-
cils' rules, the procedures employed in their promulgation, and the

amount and quality of information available to those interested in
making any assessment raised questions whether the Act's goals were
being achieved. Those goals were "to improve judicial accountability
and ethics, to promote respect for the principle that the appearance
of justice is an integral element of this country's justice system

and. at the same time, to maintain the independence and autonomy of

8 /
the judicial branch of government."- A definitive assessment

would still be premature, but the additional one and one half years
of experience under the Act furnish evidence that at least some of
the risks I perceived in the councils' approach to the implementation
of the Act are serious.

My analysis of the councils' rules revealed that, with rare ex-
ceptions, the councils did little more than track the provisions of
the Act. I considered the reasons why that approach had been taken
as well as its benefits. It was my view in 1983 and. because the

councils have made few amendments to their rules in the intervening

9/ . .
years.- xt is my view today, that those benefits are outweighed

by the costs of rulemaking minimalism. One such cost is the oppor-
tunity cost of experimentation. As I read the Act's legislative
history, the argument for local experimentation was the main reason
why Congress ultimately agreed to leave primary rulemaking authority
in the judicial councils rather than, for example, further to elab-
orate procedure in the Act or to repose primary authority in the
Judicial Conference.

A far more significant cost, in my view, is the risk that rule-
making minimalism poses to the Act's goals of public accountability
and judicial independence. "In failing to elaborate the statutory

process, most of che councils appear to have given insufficient
weight to the peculiar need for certainty and predictability in this

.. ,,10/
context . " —

With few exceptions, the councils have declined to answer the
procedural questions that a complainant, a judge or magistrate who
is the subject of a complaint, and the public are likely to regard
as most important: how a special committee appointed by a chief
judge will conduct its investigation; how a judicial council will
proceed after receipt of the report of a special committee, and how
a council will handle petitions to review the action of the chief
judge in dismissing or concluding a complaint. Moreover, to date,
there are no adequate alternative means to obtain this information.

From the perspective of a complainant or an interested member of
the public, the councils' rules provide little assurance that the
most serious complaints -- those that are certified to a special com-
mittee -- will be considered in an orderly, thorough and fair manner.
Because the Act was responsive more to appearances than to reality,
the provision of such assurance is not an act of cynicism but a crit-
ical step in meeting the goals of the legislation. The same is true
of the process by which the councils consider petitions for review.
"In most circuits complainants and the public lack assurance that a
chief judge will not participate in decisions on petitions for review
and knowledge of the information that will be considered by the coun-
cil. They are required to accept on faith that informality and col-
legiality will not lead to ad. hoc manipulation." —

From the perspective of a judge or magistrate who is the subject
of a complaint, uncertainty on important matters of procedure consti-
tutes a threat to his o.r her judicial independence. Here, we have

some evidence that the risk is not merely the figment of an academ-
ic's imagination. For. according to a news report of the recent
public hearing held by a special committee appointed to investigate
Judge Lord, on the first day of that hearing the presiding officer
"announced that, contrary to the investigatory committee's initial

guidelines, counsel for both the complainant and the respondent would

12/

be allowed to cross-examine witnesses." — Judge Lord's counsel,

former Attorney General Ramsey Clark, has told me that this was not
the only surprise that greeted participants in the disciplinary pro-
ceeding and associated appeal, leading him to conclude that "the
Eighth Circuit proceeded essentially without rules." — In my
view, federal judges and magistrates are entitled to knowledge of
their procedural rights in advance. The lack of that information
"may be reason enough not to engage in conduct that could be made

the subject of a colorable complaint, quite a chill when one recalls

14/
the Act's substantive ambiguity." —

A second aspect of the councils' rulemaking that I considered in
my studies was disunif orraity. Obviously, in opting for local exper-
imentation at the start. Congress anticipated a certain amount of
disunif ormity in the councils' rules. Just as obviously, in my view,
it looked to the Judicial Conference to resolve at some point conse-
quential inconsistencies in the councils' rules. The thrust of my
work was to suggest an approach for identifying when disunif ormity
is tolerable, or even to be encouraged, and when uniformity would
better serve the purposes of the legislation. My major point in this
aspect, however, was -- and it remains true today -- that "actual
conflict between council rules is the exception. Since most of the

councils have chosen not to elaborate the skeletal procedure set
forth in the Act. the problems of minimalism and disunif ormity merge.
The Judicial Conference simply cannot ascertain from council rules,
and it is unlikely to learn from other existing sources, the extent
to which the procedure followed in most aspects of processing com-
plaints differs among the circuits." —

In August 1983, the Conference's Committee on Court Administra-
tion sponsored a questionnaire designed to determine the procedures
in processing complaints under the Act that had been or would be
used in the various circuits. The results of that survey, which the
authors of the analysis cautioned was preliminary, reveal uncertain-
ty on numerous important procedural steps and confirm ray conclusion
that "[t]he possibility of intercircuit conflict in procedure is
... a more serious problem . . . than the existence of con-
flict."^

Finally in connection with the councils' rules, my studies
pointed out that even though, viewed as a whole, those rules do lit-
tle more than track the Act, there are a surprising number "that

conflict with the terms of the Act. are inconsistent with its ani-

17/
mating policies, or exceed its grant of rulemaking authority." —

For example, it was not until October 1983 that the Tenth Circuit
Council revised its 1978 rules to bring them into conformity with
the Act. The rules of another council purport to authorize a sep-
arate, parallel complaint mechanism involving chief district

18/
judges. — Still another's rules purport to require that a cora-

19/
plaint be filed "within one year of the action complained of." —

Moreover, the limited experience with complaints that progress to

the special committee stage suggests that problems of inconsistency
with the Act are not confined to the councils' rules. Thus, as part
of its investigation of a complaint, a special committee of the Ninth
Circuit Council delegated to a lawyer/investigator the duty of con-
ducting a hearing. Although I am aware that this mode of proceeding
received the prior blessing of the Administra' Lve Office and the.

albeit more qualified, approval of the standing committee of the

20/
Judicial Conference on review of the council's action. in ray

view, it presents a serious question of inconsistency with both the
language and the legislative history of the Act.

An assessment of the extent to which the councils' implementation
of the Act has furthered the goal of public accountability should
not be limited to an analysis of the councils' rules. In formulating
those rules, many of the councils did not provide an opportunity to
comment even to the individuals, federal judges and magistrates,
against whom complaints may be filed. Moreover, little effort has
been made to make the public aware of the existence of the Act. of
council procedures, or of actions taken pursuant to the Act. For
present purposes, however, the matter of greatest interest is the
information available for congressional oversight.

Prior to the current reporting year, neither the information
collected by the Administrative Office nor that presented, as re-
quired by the Act, in the annual report of the Director, has been
adequate for congressional oversight. Problems with the table in-
cluded in the Director's annual reports have included: inability to
determine the total number of complaints dismissed by chief judges
or the action of councils on petitions for review, and the lack of

useful information regarding complainants, complaint allegations, and
special committee and council investigations. As of July 1, 1984,
the Administrative Office revised its forms and procedure for report-
ing on complaint dispositions. The new form represents a significant
improvement, although differences among the rules and practices of
the councils continue to make the collection of useful statistical
information on a number of matters difficult if not impossible. In
any event, that advance will enhance public accountability only if
the more useful information available as a result of the new report-
ing system is conveyed in future annual reports of the Director.

Recommendations

The problems I identified in my studies of the Act's implementa-
tion, most of which subsist today, require congressional attention.
Few of them, however, should require congressional action in the
form of additional legislation.

In my articles, I suggested that a national initiative, led by
the Judicial Conference, was appropriate, and probably necessary, in
order to address perceived deficiencies in the councils' rules. The
authority of the Conference to abrogate invalid council rules and to
eliminate unwarranted disunif ormity among council rules is clear,
and it should be exercised. Others disagree with my conclusion that
the Conference also has a general power to direct the councils to
adopt rules of designated content. In any event, there is support
for the proposition that, while uniformity, at least on some matters,
is desirable, it should not be enjoined. In order, I take it, to

accommodate both positions, the Conference has apparently suspended
its own work on uniform or model rules pending results of work done
under the direction of the Conference of Circuit Chief Judges. It
is my understanding that the Federal Judicial Center intends to re-
port back to the latter group with a proposed set of model rules in
September .

In the circumstances. I hope that the Subcommittee will make
clear its expectations that the model rules project will proceed ex-
peditiously and that, without awaiting the results of that project,
the Conference will revise any existing council rules found by it to
be invalid. In light of the councils' track record in this area and
of doubts expressed about the extent of the Conference's rulemaking
authority, I also believe that it would be helpful if the Subcommit-
tee attempted to clarify whether, in the event the model rules pro-
ject fails to stimulate the councils meaningfully to revise their
rules, the Conference may step in to address the problems created by
what I have called the merger of minimalism and disunif ormity. It
may be that a perfecting amendment to the Act is necessary for that
purpose. Finally in this aspect, the Subcommittee may wish to urge
the Judicial Conference to prescribe rules for the exercise of its
authority under the Act. The expectation that the Conference would
do so is explicit in the Act's legislative history. As permitted by
the Act, the Conference has delegated its review function to a stand-
ing committee, chaired by Judge Haynsworth. That committee, ably
staffed by the Administrative Office, has been a model of responsive-
ness to requests for information and has gone to considerable lengths
to demonstrate its serious attention to, and thorough consideration

of. the matters before it. There is doubt, however, about its power
to promulgate rules and. apparently, doubt among its members about
the need for such rules. I would simply point out that the committee
considered a number of petitions for review from council actions on
petitions for review from chief judge orders before realizing that
it was without jurisdiction to do so. Prospective r les should pre-
vent that sort of inefficiency. In addition, they can provide as-
surance to members of the public who are not privy to the committee's
painstaking opinions that the process is fair.

In terms of the Act's goal of public accountability more broadly
conceived, the Subcommittee can perform a valuable service by helping
the judiciary to help itself. First, the Subcommittee should con-
sider the advisability of amending provisions of the United States

Code to ensure that there is broader consultation by the councils in

21/
rulemaking under the Act. — Second, the Subcommittee should con-
sider whether the Act should be amended to extend the requirement of
public availability to orders entered by the chief judge and by the
council acting on review petitions, so long as the complainant and

the judge or magistrate who is the subject of the complaint are not

22/
identifiable. — Third, the Subcommittee should make clear its

expectation that all orders required to be made publicly available,
under current law or the Act as it may be amended, will also be
available in one place. At present, no such central repository
exists. Finally, the Subcommittee should ensure that the Adminis-
trative Office intends to provide information more useful than that
hitherto contained in the Director's annual reports, information
that, with the new reporting system, the Office now has the capacity

co provide. If necessary, the Act should be amended to reflect more
adequately the information that is necessary for effective over-
sight. ^

In closing, I wish again to commend the Subcommittee for moni-
toring the Act's experiment in self -regulation. I hope that the
process of dialogue initiated by these hearings will convince the
federal judiciary that accountability and independence are not mu-
tually inconsistent and that, to the contrary, the best assurance of
a strong and independent federal bench is the confidence of an in-
formed public.

Footnotes

1. 126 Cong. Rec. 28.093 (1980) (statement of Sen. DeConcini); .id.
at 28.617 (1980) (statement of Rep. Kastenraeier ) .

2. See, e.g.. Burbank. The Rules Enabling Act of 1934. 130 U. Pa .
L. Rev. 1015 (1982); Burbank. Sanctions in the Proposed
Amendments to the Federal Rules of Civil Procedure: Some Ques-
tions About Power. 11 Hofstra L. Rev. 997 (1983).

3. Burbank, Procedural Rulemaking Under the Judicial Councils Re-
form and Judicial Conduct and Disability Act of 1980. 131 U.
Pa. L. Rev. 283 (1982)/

4. Burbank. The Federal Judicial Discipline Act: Is Decentralized
Self-Regulation Working?. 67 Judicature 183 (1983).

5. H.R. Rep. No. 1313. 96th Cong.. 2d Sess. 4 (1980) (footnote
omitted) (hereinafter cited as House Report) .

6. 28 U.S.C. § 372(C)(11) (1982).

7. Id. See also 28 U.S.C. § 331 (1982) ("The Conference may also
prescribe and modify rules for the exercise of the authority
provided in section 372(c) of this title.").

8. House Report, supra note 5. at 1.

9. According to the information available to me. only four coun-
cils (in the Third, Eighth, Ninth and Tenth Circuits) have
amended their rules. With the exception of the amendments in
the Third Circuit, they can fairly be described as minor.

10. Burbank, supra note 4, at 189. See also Burbank. supra note
3. at 314.

11. Burbank. supra note 3 at 323 (footnote omitted). See also
Burbank, supra note 4, at 191.

12. Ranii, A Judge's Public Battles. Nat'l. L. J.. July 23. 1984,
at 34. col. 1.

13. Telephone interview with Hon. Ramsey Clark (Apr. 3. 1985).

14. Burbank. supra note 3. at 319 (footnote omitted). See also
Burbank. supra note 4. at 189.

15. Burbank. supra note 3. at 329-30. See also Burbank. supra
note 4. at 193.

16. Burbank. supra note 3. at 290 (footnote omitted).

17. I_d. at 330. See also Burbank, supra note 4. at 194.

18. See Second Circuit Rule 0.24(i).

19. Fifth Circuit Rule 47.9.1.

20. See In re: Complaint of Judicial Misconduct. No. 84-372-001
(Jud. Conf. Comra. to Review Council Conduct and Disability
Orders 1985).

21. Cf. 28 U.S.C. § 2077(b) (1982) (requiring courts of appeals to
appoint advisory committees "for the study of the rules of
practice and internal operating procedures").

22. The existing requirement, contained in 28 U.S.C. § 372(c)(15)
(1982). applies only to orders "to implement any action under
paragraph 6(B) of this subsection." that is. to orders entered
following a special committee investigation. The Third Circuit
Judicial Council has recently amended its rules to provide for
public availability (and selected publication) of chief judge
orders and orders of the Council on review petitions, with
confidentiality preserved.

23. The existing requirement specifies only "a summary of the
number of complaints filed . . . indicating the general nature
of such complaints and the disposition of those complaints in
which action has been taken." 28 U.S.C. § 604(h)(2) (1982).

Mr. Kastenmeier. The Chair should note and request unanimous
consent that this meeting today be covered in whole or in part by
television broadcast and/or still photography pursuant to rule 5 of
the committee rules.

Let us postpone our question of Professor Burbank until we've
concluded with our second witness, who is Prof. Paul Rothstein,
representing the American Bar Association.

Professor Rothstein.

Mr. Rothstein. Thank you very much, Congressman Kasten-
meier.

You are to be commended, as is the entire committee and the
Congressmen that are considering this question on this committee,
for your foresight in foreseeing the importance of this issue and the
importance of what is involved therein.

I should make it clear at the outset that I'm not giving my per-
sonal views but I am transferring to the committee the views on
the subjects contained in H.R. 2633 that have been expressed by
the American Bar Association; that is, by the 315,000 lawyer mem-
bers of the ABA. And the way positions are arrived at in the ABA
is through a multilayered, many-stepped, many-considerationed
process that represents a great diversity of viewpoints. And these
are expressed in policies and recommendations. And it is against
these policies and recommendations that my testimony measures
H.R. 2633, and the answer that we come up with in the American
Bar Association is that H.R. 2633 is, indeed, a very, very good bill,
a bill which we agree with virtually 90 percent or more. And my
testimony will be extremely brief in support of H.R. 2633. It will be
brief in time but it's the intensity that is very strong. We very
much approve of H.R. 2633.

I would like to just run down, very briefly, the things that we do
approve of and then the very few things that we do not approve of
or that we feel could be improved in the bill.

No. 1, we agree that the Judicial Conference should play a very
large role in the rulemaking process. Next, we agree that the Judi-
cial Conference should publish its procedures, and very much
strongly endorse that. We agree very much with H.R. 2633, that
there should be a balanced cross-section of interested persons on
the advisory committees and the various committees that are con-
cerned with rules.

We heartily endorse the provision in H.R. 2633 that all meetings
be open to the public with the exceptions provided in H.R. 2633.
We support the idea that there should be minutes of all such meet-
ings and that they should be available to the public. And, in addi-
tion, we support very much H.R. 2633's idea that there should be
the opportunity to express minority views in the reports of the ad-
visory committees.

We agree wholeheartedly with H.R. 2633 in providing a unified
procedure whereby all rules of procedure and evidence should go
through Congress. And we agree that Congress' role in approving
or disapproving is properly stated in 2633. We agree that it should
require a positive act of both Houses to make a change in rules
submitted by the Supreme Court and the Judicial Conference.

There are a number of issues addressed by Professor Burbank in
his fine statement and by H.R. 2633 on which the American Bar

Association has not taken a position; not because they approve or
disapprove but because it has not gone through the American Bar
Association process. But on the things I am speaking about, they
have taken a position.

All right, now for the small handful of things wherein we feel
H.R. 2633 could be improved.

It is the position of the American Bar Association that the Judi-
cial Conference should have the ultimate responsibility for rules
that will be transmitted to Congress, with, of course, Congress
having the final say-so. And, therefore, we disagree with H.R. 2633
wherein it states that the Supreme Court has the final say-so
before transmitting to Congress.

We have suggested — the American Bar Association has suggest-
ed— that membership on the advisory committees be for staggered
terms and that there be only one reappointment for each person on
advisory committees, for reasons detailed in the American Bar As-
sociation's more extensive statement, my printed testimony. This
has not been fully carried out in H.R. 2633.

The American Bar Association would like hearings formalized,
that the Advisory Committee hold hearings on proposed rules. That
is not in H.R. 2633, although they are currently, under their proce-
dures, holding hearings.

We feel that publication of drafts ought to be prescribed in H.R.
2633, that draft proposed rules ought to be widely disseminated,
even more widely disseminated than the advisory committees are
currently doing.

And, finally, we would like to see a provision in H.R. 2633 that
would state that the time that Congress has to consider proposed
rules may be extended only once by act of Congress, for reasons set
out in our more detailed written testimony.

These are, as I say, only a handful of smaller changes that we
feel could be made in H.R. 2633 in general, and in 90 percent of its
thrust we are in agreement with the bill.

Thank you very much for giving me and the American Bar Asso-
ciation the opportunity to present this testimony.

The statement of Professor Rothstein area that had bothered —
for which the committee had some concern, was whether the ulti-
mate rulemaking authority in the judicial branch should be the Ju-
dicial Conference or the Supreme Court itself. I think we've taken
the point of view that it should, perhaps, be the Judicial Confer-
ence, and had somewhat understood that the Supreme Court would
acquiesce in that. However, we were disabused of that notion when
we received a letter from the Chief Justice indicating that, and I
quote him, that "one further area that had bothered — for which
the committee had some concern, was whether the ultimate rule-
making authority in the judicial branch should be the Judicial Con-
ference or the Supreme Court itself. I think we've taken the point
of view that it should, perhaps, be the Judicial Conference, and had
somewhat understood that the Supreme Court would acquiesce in
that. However, we were disabused of that notion when we received
a letter from the Chief Justice indicating that, and I quote him,
that "on further reflection the Justices conclude it would be better
to keep the ultimate authority for passing on rulemaking within
the Court as it is now."

And, as a result, we did accede, at least in the formulation of this
particular bill and last year, to that point of view, deferred to the
High Court; although I consider it basic policy to have an open
question whether or not the High Court has time or the structure
for devoting itself as fully as the Judicial Conference might to this

process.

I would invite your own comments on that. Perhaps, Professor
Burbank, since you had not addressed that.

[The statement of Professor Rothstein follows:]

GOVERNMENTAL AFFAIRS GROUP . 1800 M STREET, N.W. . WASHINGTON, D.C. 20036 . (»2) 331-2200

STATEMENT OF

PROFESSOR PAUL F. ROTHSTEIN

CHAIRPERSON ,

COMMITTEE ON RULES OF PROCEDURE AND EVIDENCE

CRIMINAL JUSTICE SECTION

ON BEHALF OF

THE

AMERICAN BAR ASSOCIATION

CONCERNING

H.R. 2633

RULES ENABLING ACT OF 1985

BEFORE THE
SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES AND THE ADMINISTRATION OF JUSTICE

COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES

June 6, 1985

Mr. Chairman and Members of the Subcommittee:

INTRODUCTION

My name is Paul Rothstein. I am a professor at the Georgetown
University Law Center. I appear before you today on behalf of the
315,000 lawyers and judges of the American Bar Association to present to
you the Association's views on the Rules Enabling Act. The Association's
position on the Act is contained in a policy adopted by the ABA House of
Delegates in February 1982. For the past three years, I have chaired the
ABA Criminal Justice Section's Committee on Rules of Procedure and
Evidence .

The Association would like to thank you for the opportunity to appear
at this hearing. It believes the subject being considered, the judicial
rule-making process, is very important. This is reflected not only in
the ABA's 1982 policy on the Rules Enabling Act, but also by related
positions taken in the ABA Standards Relating to Court Organization.

This hearing is a sequel to hearings held by this subcommittee during
the 98th Congress. Those hearings were very productive and informative.
They resulted in the drafting of H.R. 4144, which was subsequently
revised and redesignated H.R. 6344. They prompted frank and open
discussions concerning the judicial rule-making process. A greater
insight into this process was provided. A public record was created
concerning it.

This subcommittee is to be commended for continuing its review. The
legislation being considered today is a product of compromise. It is
much refined from its predecessor, H.R. 4144 of the 98th Congress. It
does not wholly meet all the concerns expressed in the American Bar
Association's 1983 policy. Nevertheless, it answers many of the concerns

expressed by that policy. More importantly, if enacted, it would
measurably improve the judicial rule-making process. It is a bill that
the ABA strongly supports.

HISTORY OF JUDICIAL RULE-MAKING

Before discussing the specific aspects of the judicial rule-making
process, a brief overview of the history of federal judicial rule-making
may be helpful. First, it is important to recognize that making the
rules of federal court proceedings is a power of the Congress. That
principle was recognized very early by the Supreme Court in Wavman v.
Southard. 23 U.S. 1 (1825). ,

However^ almost from the beginning. Congress delegated judicial
rule-making authority to the courts. The earliest example of this
delegation is found in Section 17 of the Judiciary Act of 1789. Through
this provision of the Act the federal courts were authorized to establish
their own rules. The Process Act of 1789, as subsequently amended in
1792 and 1793, also helped establish the tradition of judicial
rule-making being exercised by the courts through a delegation of
authority from the Congress. A series of subsequent Acts of Congress
vested in the courts authority to prepare judicial rules to govern
various proceedings, such as those involving admiralty, bankruptcy,
criminal cases, and equity matters.

In 1934, Congress authorized the Supreme Court to draft civil rules.
These rules were approved in 1938, obviating the need for rules in
equity, since actions at law and equity were merged by the civil rules.
In later years, the Supreme Court also acted on the basis of statutes
passed by Congress to bring about modern rules of criminal procedure,
appellate procedure and evidence.

In 1956, the Congress created the Judicial Conference of the United
States. In 1958, it gave the Judicial Conference responsibility for
studying the operation and effect of the general rules of practice and
procedure and recommending changes and additions to those rules.
Congress saw this as a means of providing the Supreme Court with "advice
and assistance" on these matters.

Acting pursuant to this authority, the Judicial Conference now plays
a major role in the judicial rule-making process. In fact, some
observers have noted that the Supreme Court appears to have relinquished
any first-hand participation in judicial rule-making and currently
exercises only nominal authority in the process. It routinely receives
the recommendation of the Judicial Conference concerning rule changes,
and in a pro forma manner passes them on to Congress.

Several experiences prompted the American Bar Association to take an
interest in the federal rule-making process. In 1979, Chief Justice
Burger addressed the Association about the increasing work load of the
judiciary. He stated that this increasing work load creates an important
"...need to examine the powers exercised by the judiciary." He pointed
out that often the judiciary is criticized for "...exercising powers not
assigned to it by the Constitution." Although these remarks were not a
direct call to examine the judicial rule-making process, the Chief
Justice made specific reference to this need in his 1981 Year-End
Report. Therein he stated, "In light of the Supreme Court Justices'
ever-mounting burdens, it remains uncertain whether the Justices should
set aside the time and effort required to examine proposed rules
affecting the federal court system. I have suggested on earlier
occasions that the rule-approving role of the Supreme Court — whose
members are much busier now than they were when the procedures were
established over forty years ago— merits examination."

This subcommittee's hearings during the 98th Congress provided
examination. Moreover, the Justices of the Supreme Court were prompted
to examine Congressional delegation of judicial rule-making. Their
consideration of the matter resulted in the June 25, 1984 letter from
Chief Justice Burger to Chairman Kastenmeier in which he stated,
H...IT]he Justices conclude that it would be better to keep the ultimate
authority of passing on rulemaking within the Court as it is now, but to
allow the Court to defer to the decision of the Judicial Conference."

DEVELOPMENT OF ABA POLICY

The Association became keenly interested in the judicial rule-making
process through its involvement with the consideration of what was to
become Rule 26.2 of the Federal Rules of Criminal Procedure. The ABA
House of Delegates adopted a policy placing the Association on record in
opposition to this proposed Rule. In promoting that policy, first-hand
experience was gained about the judicial rule-making process and its
procedures .

As a result of that experience, the ABA Criminal Justice Section
undertook a study of federal judicial rule-making. At the same time, the
ABA Special Committee on Coordination of Federal Judicial Improvements
also was engaged in an independent study of this subject. The reports of
these two entities were completed at approximately the same time. The
similarities in their recommendations was striking. As a result of these
reports, the ABA House of Delegates adopted a policy in February, 1982
that was based on the report of the Criminal Justice Section, but which
nevertheless incorporated the salient features of both reports. I would
like to share with you our recommendations.

ABA POLICY ON DELEGATION OF JUDICIAL RULE-MAKING
The American Bar Association recommends that the Congress take the
necessary action to formally provide for judicial rule-making authority
to be delegated to the Judicial Conference of the United States. H.B.
2633 continues to vest this authority in the Supreme Court, and therefore
does not mirror the Association's view on this issue. While the position
taken by H.R. 2633 on this issue can be easily understood and respected
— particularly in view of the Chief Justice's June 25, 1984 letter — it
may be enlightening to review the reasoning that lead to the
Association's position on this matter.

The conclusion that the rule-making process should be shifted from
the Supreme Court to some other body was based on a number of factors.
First, to the extent that it could be determined, it appears that the
Supreme Court presently participates in the rule-making process in only a
nominal way. It seemed logical that the applicable statutes be amended
to reflect the prevailing rule-making practice as it is actually
conducted. Secondly, this would be a way of decreasing the
responsibilities of the overburdened Supreme Court without impairing
judicial efficiency or the rights of litigants. Thirdly, it would
resolve a longstanding controversy over the propriety of the Court
deciding cases that involve challenges to rules that the Justices have
previously approved. If rules were drafted and approved independent of
the Court's participation, decisions on issues involving those rules that
subsequently manifest themselves in cases before the Court would take on
a greater appearance of objectivity and impartiality.

Once we felt that there exist cogent reasons for shifting the
judicial rule-making authority, consideration had to be given to the
question of what body should be the recipient of this responsibility.

The American Bar Association supports vesting this authority in the
Judicial Conference. The Association supports this approach for a number
of reasons. First, the Judicial Conference has been exercising this
authority for twenty-seven years. During this time it has done an
admirable job. Furthermore, it already has the administrative structure
to continue this function. In addition, it has the research and staff
capability of the Administrative Office of the United States Courts and
the Federal Judicial Center to assist it in effectively and efficiently
carrying out this function. Finally, this approach supports Standard
1.30 of the ABA Standards Relating to Court Organisation. That Standard
states, "Authority to formulate rules of procedure for all types of
matters and proceedings in the courts should be vested in the court
system..." The complete text of this Standard and its accompanying
Commentary are attached (See appendix "B".)

BALANCED REPRESENTATION ON RULE-DRAFTING BODY

Proponents of vesting judicial rule-making in a newly created
independent commission see this type of structure as fostering a high
degree of independence on the part of the rule-promulgating authority.
They stress the need for removing the process from the influence of
judges and the Chief Justice, who presides over the Judicial Conference
and appoints its committees.

The Association believes that it is not necessary to remove
rule-making authority from the Judicial Conference in order to obtain a
desirable degree of independence. We believe that the necessary
independence can be achieved through prescribing certain membership
criteria for the rule-drafting committees operating under the auspices of
the Judicial Conference. The rule-drafting stage is perhaps the most
critical stage of the process at which fundamental decisions are made.

To this end, the Association's policy urges that the Advisory
Committees conducting the rule-drafting be "broadly representative of all
segments of the legal profession." H.R. 2633 contains language to
implement the spirit of this principle. The Association's policy also
advocates that the members serve staggered terras during which the
membership is gradually rotated. Persons should be eligible to be
reappointed to a consecutive term only once. This method is seen as
constantly bringing persons with new ideas and perspectives to serve on
the rule-drafting committees.

H.R. 2633 does not contain these provisions relating to members*
terms. We commend them to the subcommittee as elements that could help
achieve a more independent drafting body.

OPENNESS IN THE JUDICIAL RULE-MAKING PROCESS

The American Bar Association policy also contains a number of
recommendations intended to promote "openness" in the judicial
rule-making process. Creating an atmosphere of "openness" is important
in shaping the public's perception of the judiciary as an institution of
our government. The public's belief that there is a need for openness
for all institutions of government was heightened by the "Watergate"
incidents. So many of the proceedings that surrounded that incident
occurred in an air of secrecy that the public became naturally suspicious
of any proceedings conducted outside the view of the public. In the
public's eyes, the judiciary was the symbol of fairness in the
"Watergate" incidents. For the judiciary to have compelled disclosure in
so many instances in those cases, and yet to foreclose the public's
access to its own rule-making proceedings has the potential of doing some
violence to the public's image of our judicial system.

57ft

Some of the ABA recommendations on openness have already been
implemented to some degree by the Judicial Conference. H.R. 2633 would
formalize many of these practices and procedures and guarantee openness
by statutory mandate.

The Association's 1983 policy calls for the publication of the
procedures by which the Judicial Conference and its Advisory Committee
conduct the judicial rule-making process. These procedures were
published in September 1984. A copy is attached as Appendix "C."

They contribute to the bar and the public's understanding of the
rule-making process. They help to clearly delineate for interested
persons the opportunities that they have for making a contribution to the
drafting of proposed rules. They also permit access to documents and
records accumulated in the rule-making process. It is gratifying that
H.R. 2633 would statutorily recognize the need for these published
procedures .

The Judicial Conference currently publishes draft rules and
circulates them to interested members of the bench and the bar. Although
this achieves a certain degree of dissemination, the ABA policy suggests
that a greater degree of access to proposed amendments could be achieved
if they were published in appropriate publications that are circulated to
persons and organizations likely to be interested in draft rules.

The policy makes no suggestions as to what might be appropriate
publications. However, the Federal Register might be viewed as one
possible candidate. Other likely sources are the various bar journals
and legally oriented newspapers. In lieu of publishing the complete rule
amendments, consideration might be given to widely publishing notice of
their availability.

The Association policy supports the judicial rule-making authority
holding public hearings on proposed rule changes. In recent years, the

Committee on Rules of Practice and Procedure of the Judicial Conference
has held public hearings on proposed amendments to both the Federal Rules
of Criminal Procedure and the Federal Rules of Civil Procedure. The ABA
Criminal Justice Section has participated by sending a representative to
the hearings to present its views on the proposed amendments to the
criminal rules. H.R. 2633 does not contain a requirement that public
hearings be held on rule changes under consideration. The Subcommittee
may want to recognize this practice by statutorily requiring it.

Public hearings have the advantage of allowing a dialogue between
committee members and witnesses that appear before them. In addition,
they serve the important function of enhancing the appearance of
••openness." Although the hearings may not provide vast amounts of
information that is not otherwise available or could not be provided
through written comments, it is vital that the public perceive that the
courts adhere to a policy of openness and are receptive to suggestions
set forth in an open forum.

In addition to holding public hearings on proposed rule changes, it
is important that meetings at which final reports are received and action
is taken also be open to the public. H.R. 2633 contains a reasonable
"open meetings" provision. Certainly there are times during the rule-
drafting process when business must be carried out without the presence
of "outside" individuals. As a practical matter, a certain amount of
private discussions and negotiations must take place to enable the
committee to launch a proposal. Public observation is not critical at
this stage and will not materially add to the deliberations. In fact, it
may have an inhibiting influence. The drafting committee must feel free
to "float" proposals, frankly discuss them, and take appropriate action.
Undoubtedly many ideas are considered at this stage that never become

"serious" proposals, and therefore have no potential of having an impact
on the bench, the bar, and other interested persons.

H.R. 2633 has wisely provided a simple procedure for closing meetings
when the committee believes it is appropriate. Since the reason for
closing the meeting must be stated on the record, there is less likely a
chance that the practice will be abused and that closed meetings will
become a routine practice.

It is not expected that, as a practical matter, the presence of the
public at meetings where reports are received and final action is taken
will often have major impact on the decisions that are made. However,
this is not its main purpose. It is intended to serve the important
function of dispelling the negative connotations that attach to any
governmental decision that is made "behind closed doors." Open meetings
also permit the public to be privy to discussions that are dispositive of
proposed amendments .

The ABA sees the maintenance of minutes by the rule-making authority
to be an important practice. The "Procedures for the Conduct of Business
by the Judicial Conference Committees on Rules of Practice and Procedure"
published in September 198A provide for minutes to be kept by the
Advisory Committees and the Standing Committee. H.R. 2633 also requires
that minutes be kept.

Minutes are particularly helpful in early stages of the rule drafting
process when the proceedings are most likely to be closed to the public.
Of course, it is important that the minutes then be available to the
public. Both H.R. 2633 and the Judicial Conference's procedures provide
public access to the minutes. This should alleviate one of the main
criticisms that has been cited as an example of a characteristic that
gave judicial rule-making a secret aura.

Finally, we suggest that a procedure be instituted to provide for
filing minority reports expressing dissenting views to concepts
incorporated into proposed rule changes. H.R. 2633 contains such a
provision .

The general availability of minority views would be helpful in high-
lighting areas of disagreement, and thereby preserve a record of
positions that were considered and rejected. They would be of assistance
to persons doing research on the rules and could become an important tool
for court interpretation of decisions made by the Judicial Conference on
rule changes. Furthermore, if broadly representative committees are
formed, there may become an increasing need for minority opinions, as
decisions on rule changes become less homogenized.

THE ROLE OF CONGRESS IN JUDICIAL RULE-MAKING
The ABA policy also contains recommendations as to the role of
Congress in the judicial rule-making process. That policy supports the
continued review of proposed rules by Congress. Furthermore, it states
that Congress should have the opportunity to amend proposed rules.

While H.R. 2633 provides for rules to be submitted to Congress, it
does not clearly indicate whether Congress can amend the rules that are
submitted, although the broad language "unless otherwise provided by law"
contained in §287A(a) may contemplate a Congressional amending process.
If Congressional authority to amend rules, is contemplated, it may be
prudent to state this fact clearly.

The ABA policy also specifies that amendments by Congress to proposed
rules that are submitted to it should be accomplished by legislation
approved by both Houses. Presently, in the case of the Federal Rules of
Evidence, either House is empowered to disapprove a proposed rule by
passing a resolution. This unilateral authority to disapprove a proposed

rule is tantamount to a one-House amendment to delete an entire rule.

It may also be useful to clarify that amendments to rules, as well as
entirely new rules, are subject to Congressional review. The language
presently contained in the bill calls for sending the rule to Congress
when it is "prescribed." There may be some doubt as to whether this
requirement relates solely to completely new rules, or also embraces
amendments to existing rules. A minor change in the language could
alleviate any confusion.

The ABA policy suggests certain limitations be made to the existing
process of Congressional review and amendment. The review period should
be for a period of 180 calendar days. H.R. 2633 contains a similar
review period.

The ABA policy, however, contains an additional provision not
included in H.R. 2633. It would specify that this time period should be
permitted to be extended by Congress only once. A limitation on
extending the time for review is suggested so that Congress cannot
indefinitely continue to delay the effective date of rule amendments.
Unless Congress acts within the permitted time (or a reasonable extension
thereof), the amendment should take affect.

The Association policy also asks that Congress take a look at all
aspects of the procedure surrounding the submission of judicial rules to
Congress and the procedures for their review and approval. In many
instances these procedures lack uniformity. Presently, there is not
uniformity as to: (1) what rules are submitted to Congress, (2) the time
when they are required to be submitted, (3) the manner in which Congress
may effect changes or reject rules, and (A) the time provided for
Congressional review.

There appears to be no reason for the variation in the procedures
that apply to various types of rules. The only explanation seems to be

48-930 O— 85-

that the "Rules Enabling Act" is actually a series of statutory
provisions that have been enacted in a piecemeal fashion over a period of
years .

Until now, no comprehensive revision of the Act has been undertaken
to reconcile these meaningless incongruities. H.R. 2633 tackles this
persistent problem and resolves it.

CONCLUSION

I again thank you for the opportunity to appear and present the
American Bar Association's views on this important subject. It is hoped
these remarks have been helpful. The ABA has a keen interest in the
judicial rule-making process and actively participates in it when the
opportunity arises.

Just this past week, the ABA Criminal Justice Section transmitted to
the Advisory Committee on the Federal Rules of Criminal Procedure of the
Judicial Conference a memorandum recommending changes to those Rules.
This document detailed amendments that should be considered in light of
the enactment of the Comprehensive Crime Control Act of 1984. It was
prepared at the request of the Judicial Conference Advisory Committee's
Chairman, Judge Frederick B. Lacey.

Judge Lacey' s invitation to submit these comments is a welcome
indication of willingness to involve outside groups in the very early
stages of the rule drafting process. It is a commendable gesture on the
part of Judge Lacey.

It is sincerely hoped that Judge Lacey' s openness and also these
hearings will lead to an improved judicial rule-making process that
benefits all persons who participate in or come in contact with our
federal judicial system.

I would welcome the opportunity to answer any questions that the
Subcommittee might care to ask.

1141c

APPENDIX "A"

AMERICAN BAR ASSOCIATION POLICY
ON THE
RULES ENABLING ACT

ABA Policy - Approved Criminal Justice

bv the ABA House of

Delegates (February 1982) Report Nq n8B

The Section's second recommendation (Report No. 118B) was amended by
the Section, supported by the Special Committee on Coordination of Federal
Judicial Improvements which withdrew its own recommendation (see page 3)
on the same subject, and then approved by voice vote. As approved, it reads:

Be It Resolved, That the American Bar Association supports changes in
the relevant statutes and procedures applicable to the process of adopting
rules of evidence and procedure for use in the federal courts to be in con-
formity with the following principles:

I. The delegation of rule-making authority should be granted by Con-
gress to the Judicial Conference of the United States.

II. The Advisory Committees of the Judicial Conference that perform
rule drafting functions should be broadly representative of all segments of
the legal profession, including judges, prosecutors, defense lawyers, legisla-
tors, law professors, and other lawyers who participate in a meaningful way
in the area which is affected by the rules under consideration. The members
of these Advisory Committees should be appointed for a term of a specified
period of time. At the expiration of the term, the members should be eligi-
ble to be reappointed to a consecutive term only once. The expiration of the
members' terms should be staggered, so that the membership of the com-
mittees is gradually rotated.

III. The Judicial Conference and its Committees should promote open-
ness in the rule-making process and the procedures utilized in this process by:

A. Publishing the procedures by which the Judicial Conference and
its Committees conduct the rule-making process.

B. Publishing, as early as possible, copies of draft rules and also any
major changes that have been made to previously published draft rules.
They should be published in appropriate publications circulated to per-
sons likely to be interested in the draft rules and also distributed to per-
sons and organizations who are likely to have an interest in the draft rules.

C. Holding public hearings on all draft rules and also on major changes
that have been made to previously published draft rules. These public
hearings should be announced in advance by notice in appropriate publi-
cations within a sufficient time prior to the hearing. The notice should
solicit public comment on the proposed rules and invite interested per-
sons to appear and testify at the public hearing.

D. Maintaining minutes of their proceedings. These minutes should be
available to all interested persons.

E. Opening to the public meetings when final reports on proposed
rules are received, and action is taken on these reports.

F. Permitting members to file minority reports in disagreement with
the final report that is adopted. Minority reports should be appended to
the final report that is adopted.

IV. Proposed rules should be submitted to Congress by the Judicial Con-
ference so that Congress may review them and have an opportunity to
amend them, if desired, prior to their taking effect. This review process
should be uniform for all rules and provide at least 180 calendar days for
Congress to engage in a meaningful review period once, for a specified lim-
ited number of days. Proposed rules should take effect unless they are dis-
approved or amended through legislation within the 180 day time period,
or an extended period of review.

The following "Report" accompanied the the proposed

Recommondation of the Criminal Justice Section to

the ABA House of Delegates. This Recommendation

was approved as ABA "policy," with certain modifications

first being made to paragraph IV. The "Report" does

not constitute ABA policy, however it serves to explain

and provide supporting commentary to the policy.

KEPCCT

Scope of Recommendation

She Recommendation that is the subject of this report neJces three
proposals on natters pertaining to the Rules Biabling Act. The first
advocates that the judicial rule-making responsibility that is currently
exercised in a nominal manner by the Supreme Court of the United States
be vested in the Judicial Conference. The Judicial Conference is the
organization that does, in fact, now exercise this function. Secondly,
the Recbnnendation articulates some fundamental concepts that would
infuse the judicial rule-making process with procedural nrinciples
permitting greater participation by mercers of the legal profession.
These concepts include measures to bring about bread representation

118B

Congress has exercised this power by delegating its rulemaking
authority to the Supreme Court through the enactment of 28 USC §2071
(General Rule-making Power) , §2072 (Power to prescribe rules in civil
actions) , §2075 (Bankruptcy rules) , and §2076 (Rules of Evidence) .
The Supreme Court has been delegated the authority to make rules in
criminal cases and proceedings by 18 USC §§3771 and 3772.

In practice, the Supreme Court does not take an active part in tt
drafting of court rules. It has given this responsibilitv to the Judi
Conference of the United States. In 1958 the Judicial Conference was
given the_responsibility by Congress ._to "carry on a continuous
study of the operation and effect of the general rules of
practice and procedure. ..prescribed by the Supreme Court for the other
courts..." "..(C)hanges in and additions to those rules .. .deemed
desirable., .shall be recommended by the Conference. . .to the Supreme Cc
for its consideration and adoption, modification or rejection..." (Se
28 USC §331) .

A Senate Report noted, '"Ihe procosed legislation does not chanae
responsibility of the Supreme Court for prescribing rules of practice
and procedure in Federal courts nor the responsibility for submitting
some of them for congressional review. It does, however, bv statute,
permit the Supreme Court to secure the advice and assistance of an
existing group which is uniquely qualified to give advice on these mat
The reality of the practice, however, has meant that the Supreme Court
does not now prescribe the rules and only exercises nominal authority :
judicial rule making for the federal courts.

Questions have been raised as to the propriety of delegating to
the Court even this nominal authority. ' The' manner in which that authoi
is in practice carried out has also been a source of controversy.

Ihe arguments against continuing the present practice of deleoatir
rule-making authority to the Supreme Court include the following:

1. "In 1944 Justice Frankfurter opposed the adoption of the
Federal Rules of Criminal Procedure on the ground that the
Supreme Court would be unable to evaluate -them ef fectivelv
in view of its distance from the realities of day-to-day
district court trial proceedings . "5 (See Rules of Criminal
Procedure, Order, 323 U.S. 822 (1944) (memorandum of
Frankfurter, J.)

4. Senate Report No. 1744, 85th Conq., 2d. Sess., renrinted in
1958 U.S. Code Cong. & Ad. News 3023, 3024

5. Weinstein, supra note 3 at 934

1 18B

on the advisory committees of the Judicial Conference that exercise
rule drafting responsibilities, and procedures to assure openness in
the consideration of the rules by the Judicial Conference and its
committees. Finally, it speaks to the role of Conqress in federal
judicial rule-raking.

These three proposals do not address all issues that legal
scholars have raised concerning the Rules Enabling Act and the general
principles of jv<dicial rule-raking . They only seek to present a
position on some matters that raise procedural concerns about the wav
in which judicial rules are drafted and adopted for the federal courts.

The question of the scope of matters that nay properly be the
subject of judicial rule-making is not considered bv this reoort.
It should be noted, however, that the commentary to Standards 1.30 and
1.31 of the ABA Standards Relating to Court Organization soeak to the
dicotomv of authority between the legislature and the courts over
"procedural" matters and "substantive" rights. The Congress has also
spoken to this issue by enacting an affirmative Drohibition that states
"...rules shall not abridge, enlarge or modify an substantive right
and shall preserve the right of trial by jury as at ccntron law and as
declared by the Seventh Amendment to the Constitution."! it has also
declared that a rule of court having the effect of making an "...amend-
ment creating, abolishing, or modifying a privilege shall have no
force or effect unless it shall be approved by act of Congress. "2

Delegation of Federal Judicial Rule-making to the Judicial Conference

The rulemaking authority for federal courts rests ultimately with
the Congress. This fact was recognized early in our nation's historv.
Mr. Chief Justice John Marshall writing in the case of Wavman v. Southard,
23 U.S. (10 Wheat.) 1 at 41-42 (1825) "...seemed to view the courts'
rulemaking power as descending by specific delegation from Conqress
rather than deriving from an independent judicial authoritv to formulate
procedural rules. "3 More recently, the Court declared in Sihbach v.
Wilson & Co., 312 U.S. 1 at 9-10 (1941),

"Congress has undoubted power to regulate the practice and procedure
of federal oourts and may exercise that power by delegating to this
or other federal courts authority to make rules not inconsistent
with the statutes or Constitution of the United States."

1. 28 USC §2072

2. EL

3. Weinstein, Reform of Federal Court Rulemaking Procedures,
76 Colum. L. Rev. 905 at 927 (1976)

118

2. Justioe Frankfurter also "believed that it was undesirable

for the Oourt to appear, through the issuance of rules, to
prejudge issues that might come before it in litigation. "6
(See Rules of Criminal Procedure, Order, 323 U.S. "821,

822 (1944).

3. "The secrecy which normally enshouds the deliberations of the
Supreme Court has given rise to another objection to its role
in rulemaking. The legitimacy of rules, like that of anv
legislation, stems in large part from public access to the
reasoning of the decision-makers; the Court's secrecy poses

a threat to this legitimacy. "7

4 . " . . . (D) angers posed by congressional criticism of Court-made
rules. Such criticism creates an unnecessarv conflict between
the Court and Congress and reduces the Court's prestige and
reputation for unbiased independence . "8

Recognizing that these criticisms may have some validity and beinq
cognizant of the fact that the Supreme Court does not in realitv directly
exercise the rule-making authority it has been granted, the ouestion
arises as to who should exercise this authority. Scholars have proposed
several alternatives .

The most logical alternative on the federal level is for Conoress
to formally designate the Judicial Conference of the United States as
the rulemaking body. This is the alternative that is proffered by the
Recoimiendation that is the subject of this Report. It is a logical
choice. The Judicial Conference is, in fact, already exercisinq this
function. It is experienced in these matters and has demonstrated its
ability to discharge its responsibilities in an effective manner. Further-
more, the use of the Judicial Conference as the rule-making body conforms
with the mandate of §1.30 of the American Bar Association Standards
Relating to Court Organization. That Standard provides, "Authority to
formulate rules of procedure for all types of natters and proceedings in
the courts should be vested in the court system. . . n

The designation of the Judicial Conference as the rule-makina bodv for
the federal courts will not only preserve the judiciary's particiDation
in the development of its own rules, but will minimize the contention
that federal courts too readily accept the legal sufficiency of court

6. Id^

7. ML at 936

8. Id.

L18

rules and demonstrate a reluctance to strike down these rules of court
because they have been promulgated by the Supreme Court. The case of
Hanna v. Pluroer, 380 U.S. 460 (1965) is often cited as evidence of this
judicial reluctance to find fault with court rules. Therein, it was
stated "...the court has been instructed to apply the Federal Rule, and
can refuse to do so only if the Advisory Committee, this Court, and
Congress erred in their prima facie judgment that the Rule in question
transgresses neither the terms of the Enabling Act nor constitutional
restrictions . "9

One of the other possible alternatives would be "an independent
cmiinission created by Congress with members chosen by leaders of the
legislative and the judicial branches of government. "10 This
alternative was not chosen to be included in the Recommendation because
it does not conform to ABA Standards and because of the concern that
"...if Congress were to participate in the original drafting it might
become too committed to a draft to exercise its power of review
impartially. "H

Advisory Conrtittees of the Judicial Conference

Paragraph IT of the Recommendation that is the subject of this
Report provides that Committees of the Judicial Conference that perform
the rule drafting function should have a membershiD broadly
representative of the segments of the legal profession, includina
judges, practitioners, law professors, legislators, and others which
are affected by the rules under consideration. This prorosal is made
to assure the direct participation of members of the bench and the
bar in the rule drafting process. It supports Section 1.30 of the ABA
Standards Relating to Court Organization which provides, "The authoritv
to promulgate rules of procedure nay be vested in... a rule-makina
committee composed of judges, lawyers, legal scholars and representatives
of the legislature." It also addresses a concern that the present
"advisory committees" to the Rules Grama ttee of the Judicial Conference
do not currently provide the broad representation that is desirable.
In addition to providing this broad representation, consideration should
also be given to creating a membership that reflects minoritv groups
that are increasingly joining the ranks of the legal profession.

9. 380 U.S. 460 at 471

10. Lesnick, The Federal Rule-Makina Process: A Time for
Re-examinatian, 61 A.B.A.J. 579 at 582 (1975)

11. Weinstein, supra note 3 at 941

.*. , 118B

This paragraph of the Recommendation also provides that the
members of the advisory committees exercisino rule drafting
responsibilities should be appointed for a term of limited duration.
In addition, it is suggested that the menbers' terms should be staggered
to permit a rotation of the committees' membershiD. In this manner, the
drafting committees would benefit from a regular chanae of iitarbershiD
that would inject new ideas and insight into the rule drafting process.

To some extent, this rotation of membership in conjunction with
the broadly representative nature of the membership, would act to
ameliorate the circumstances that have resulted in the observation
that the committees are affected by a dominating influence that the
present system gives to the Chief Justice.

The Judicial Conference is chaired by the Chief Justice. Its
membership includes the chief judges of the eleven circuits, the Court
of Claims, and the Court of Customs and Patent Appeals. In addition,
a district judge from each of the eleven circuits is elected by the
federal judges in the circuit to serve as a member of the Conference.
In addition to chairing the Conference, the Chief Justice exercises
authority over the rulemaking procedures of the Conference bv appointing
the members of the Conference's Committee on Rules of Practice and
Procedure. It is this Committee, and the advisory committees of this
Committee (also appointed by the Chief Justice) , that draft the rules.
It is Drobably a fair observation that, "(a)s a practical matter, there
is now strong psychological pressure on individual advisorv committee
members to modify the rules as they think the Chief Justice would wish. "12
Ultimately, the Committee on Rules reports to the Judicial Conference, which
is chaired by the Chief Justice; and the Judicial Conference then
reports rule changes to the Supreme Court, which is also presided over
by the Chief Justice. Paragraph II of the Recommendation is intended to
minimize these criticisms by modifying the conditions that give rise
to their applicability to the rule drafting Committees.

Openness in the Federal Judicial Rule -making Process

Paragraph III of the Recommendation that is the subject of this
Report calls for openness in the federal judicial rule-nakina process.
It enumerates a number of specific proposals to promote a more oren
and accessible process. These proposals are borne mainlv out of the
perceived flaws in the present process.

At the present time, although the Judicial Conference is responsible
for formulating the rules of court, it has not "seen fit to publish
procedural rules or even an informal statement describing its orocedures . "I3

12. Id. at 941

13. Lesnick, suDra note 7 at 580

Therefore, the procedure by which rules are proposed has never been
formalized, and any description of that orocedure is a recitation of
the customary practice. By publishing its procedures, and the procedures
of its Cormittees, the rule-making organization "...would enhance the
awareness of interested parsons and thereby facilitate their
participation; it also would find itself required to face explicitly
the question whether its procedures now provide adecuate means for
obtaining a broad range of incut. "M

The publication of draft rules as early as possible in the draftina
stage is essential to permit outside groups to review the proposed rules
and provide meaningful content to them. Furthermore, when substantial
changes are made to these draft rules, interested groups should be
notified so that they can also provide cement an these changes. This
notification requirement is in conformity with Section 1.31 of the
ABA Standards Relating to Oourt Organization. That Standard provides,
in part, 'The authority (to prescribe rules) should be exercised through
a procedure that involves use of advisory committees from the bar,
notice to (emphasis added) and opportunity on the part of members of
appropriate legislative committees, and the bar to suggest, review, and
make recommendations concerning proposed rules."

Public hearings should also be an integral part of the rule-making
process. In the past, although an opportunity may have been given for written
comments to be submitted, no public hearings to receive oral testimony
were held by either the advisory committee, the Committee on Rules of
Practice and Procedure, the Judicial Conference, or the Supreme Oourt.
Although it is the practice that written comments that are submitted are
available for public inspection, this is not a satisfactory substitute
for making a free and open public hearing available to the public.

Published minutes of the deliberations of the Committees enqaoed
in rule-making proceedings would also promote openness and be an aid
to persons interested in the formulation of the rules. At the present
time, the proceedings of the advisory committees are recorded. However,
these recordings are not usually transcribed; and even if they are
transcribed, they are not available to the public.

Ihe meetings of the Committees participating in the rule-snaking
process should be open to the public at critical stages of the decision-
making process. This does not mean that the public needs to be privy to
all the deliberations undertaken. Indeed, there is more than adecuate
reasons why a body formulating rules may want to have closed meetings
during certain initial formative stages of their proceedings. However,
at a point where the decision-making process becomes more determinative
and decisive, the public ought to be permitted to be present. This

14. id.

1 1 I

concept is in keeping with the recoimendation of Senator Ervin
that "full sessions, 'when it receives committee reports and takes
action on them, be open to the public and the press. "15 (see The
Independence of Federal Judges, Hearing Before the Subcommittee on
Separation of Powers, Senate Committee on the Judiciary, 91st Conaress,
2d Sess., at 312 (1970)) .

Senator Ervin has also suggested that minority reports be
prepared. This would serve the purpose of alerting "...interested
lawyer and legislators that matters of controversy are beina
resolved. "16 Currently, there is no means of determinina what
issues were in controversy among committee members or members of
the conference when particular rules were being considered.

The Role of Congress in Federal Judicial Rule-Making

Paragraph IV of the Recommendation that is the subject of this
Report maintains that Congress should retain authority to review
and amend rules prior to their taking effect. Presentlv, Congress
exercises authority to review most rules. Only procedure-after-
verdict rules adopted pursuant to USC §3772 are not submitted to
Congress for review.

"(T)he practice of submitting proposed court rules for
congressional approval or modification seems altogether aDDropriatei
such a process conforms to the basic tenets of delegation theory. '
The participation of Congress in reviewing court rules is in accordance
with Section 1.31 of the American Bar Association Standards Relating
to Court Organization. This Standard provides that there should be a
procedure that involves an " . . .opportunity on the part of members of
appropriate legislative committees, ...to suggest, review, and make
recauifcindations concerning proposed rules." The Commentary to the
Standard further states "The legislature... (has) a legitimate concern
with procedural policy, and the legislature, as the popularly elected
representative of the community as a whole, should have the opportunity
to participate in determining what the policy should be . "

The Recommendation provides that the review process should be
uniform. The provision for uniformity is prompted by the variation in the
Congressional review process and the observation that "(t)here is no
persuasive reason why all this national rulemaking power should not be

15. IcL

16. Id^

17. Weinstein, supra note 3 at 927

exercised in the same way and be subject to the same control by Congress. "^

The time period provided for Congressional review of court rules is
one aspect of the process that is not currently uniform. As nreviously
stated, no Congressional review is provided for procedure-after-verdict
rules. Rules of Evidence must be reported to Conqress not later than the
May 1 following the beginning of a regular session of Congress, and take
effect 180 days after they have been so reported. Other rules (criminal
rules, see 18 USC S3771; civil rules, see USC §2072)) take effect 90 days
after they are reported.

Ihe Recommendation specifies a 180 day period of review. The 180
day period is in keeping with the view of Howard Lesnick that "A doublina
of the ninety-day period of delay in effectiveness would certainly be
warranted... "15 fliis suggestion is made because of the inadequate time
90 days providesfor meaningful review.

Recognizing that in some cases 180 days may also be inadequate, the
Reccrrnendation provides for an extension of this time period. However, the
extension may be made only once, and then only for a specified limited
period. Ihis extension may be made by either the House of Reoresentatives
or the Senate acting unilaterally. Ihe one-time extension for a specified
limited period is designed "to prevent delay from being used not merely
to permit decision but to embody it. "20

Another aspect of the present system that lacks uniformitv is the
manner in which Congress can effect a modification to rules that are
submitted for its review. Rules of Evidence may be rejected by a
resolution passed by either the House or the Senate; whereas the
rejection or modification of procedural rules requires the passage of a
bill by Congress and the signature of the President.

Ihis Recommendation provides for disapproval of nroposed rules or
amendment of these rules by Congress. Such a provision is logical.
Ihe purpose of submitting proposed rules and changes to existing rules
to Congress is to permit them to review them. If this review is to be

18. Weinstein, supra note 3 at 939

19 . Lesnick, supra note 7 at 583

20. Id.

118

meaningful, Congress must retain the authority to act in accordance with
the findings resulting from the review it conducts.

Resnectfullv submitted

Svlvia Bacon

ChairDerson

Criminal Justice Section

January, 1982

APPENDIX "B"

AMERICAN BAR ASSOCIATION STANDARDS

RELATING TO
COURT ORGANIZATION
(STANDARD 1,30)

AMERICAN BAR ASSOCIATION COMMISSION ON
STANDARDS OF JUDICIAL ADMINISTRATION

STANDARDS RELATING TO

Court Organization

The Standards Relating to Court Organization were approved by the American
Bar Association House of Delegates in February. 1974.

1974

COMMISSION ON STANDARDS
OF JUDICIAL ADMINISTRATION

Carl McGowan, Chairman

U.S. Court of Appeals

District of Columbia

Washington, D.C.
Griffin B. Bell

U.S. Court of Appeals

5th Circuit

Atlanta, Georgia

Charles D. Breitel
Chief Judge

New York Court of Appeals
New York, New York

Louis H. Burke
Supreme Court of California
San Francisco, California

Thomas E. Deacy, Jr.

Member, Missouri Bar

Kansas City, Missouri
Walter Ely

U. S. Court of Appeals

9th Circuit

Los Angeles, California

Thomas S. Jackson

Member, District of

Columbia Bar

Washington, D.C.
Harry O. Lawson

State Court Administrator

Denver, Colorado

William T. Coleman, Jr., Member, Pennsylvania Bar, Philadelphia,
Pennsylvania, and John T. Reardon, Chief Judge, 8th Judicial Circuit of
Illinois, Quincy, Illinois, served on the Commission 1971- 1973. Abraham
Freedman, Judge, U.S. Court of Appeals, 3rd Circuit, served on the
Commission 1971. Hicks Epton, Member, Oklahoma Bar, Wewoka,
Oklahoma, served on the Commission 1971- 1972. Bernard Botein, Retired
Presiding Justice, N.Y. Supreme Court, First Department served on the
Commission 1971-1974.

Staff:

Geoffrey C. Hazard Jr., Reporter

Elisabeth Albert, Assistant Reporter

Margaret Leavy, Assistant Reporter

Research Assistants: Anna M. Latella, Martin B. McNamara,

Joyce E. Moran, Irwin F. Sentilles III
Consultants: Eldridge Adams, Maureen Solomon
Wantland L. Sandel, Jr., ABA Staff Liaison
George F. Westerman, ABA Staff Liaison. 1971-1973

Charles W. Light
Circuit Court
Paragould, Arkansas

John E. Mathews
Member, Florida Bar
Jacksonville, Florida

Wade H. McCree.Jr.
U. S. Court of Appeals
6th Circuit
Detroit, Michigan

Phillip J. Roth
Circuit Court
Multnomah County
Portland, Oregon

Craig Spangenberg
Member, Ohio Bar
Cleveland, Ohio

Robert L. Trescher
Member, Pennsylvania Bar
Philadelphia, Pennsylvania

Robert H. Wahl
Court of Common Pleas
Wilmington, Delaware

Charles A. Wright
Professor of Law
University of Texas
Austin, Texas

1.30 Rule-Making, Policy-Making, and Administration: Gen-
eral Principle. Authority to formulate rules of procedure for
all types of matters and proceedings in the courts should be
vested in the court system, under arrangements in which the
legal profession and the public have an opportunity to partic-
ipate. The court system should control its own administra-
tive policies and should have procedures through which all

§1.31

Court Organization

its judges can participate in developing such policies. Au-
thority to implement the courts' administrative policies
should be established in a clear and simple set of manage-
ment relationships under the supervisory authority of the
chief justice.

The authority to promulgate rules of procedure may be
vested in the members of the state's highest court or in a
rule-making committee composed of judges, lawyers, legal
scholars and representatives of the legislature. Authority to
promulgate administrative policy should be vested in a judi-
cial council composed of judges from various courts within
the system or of the members of the supreme court sitting as
a judicial council. The judicial council should act as an advi-
sory committee to the chief justice concerning matters of
administration. All judges in the court system should con-
vene regularly as a body to deliberate upon and discuss the
work of the court system and their problems and responsi-
bilities in its administration.

1.31 Rule-Making Authority. A court system should have au-
thority to prescribe rules of procedure, civil and criminal.
The authority should extend to all proceedings in all courts
in the system and should include all aspects of procedure.
The authority should be exercised through a procedure that
involves use of advisory committees from the bar, notice to
and opportunity on the part of members of appropriate leg-
islative committees, and the bar to suggest, review, and
make recommendations concerning proposed rules. The
rule-making body should have stair assistance for research
and drafting.

Commentary

It is generally recognized that the courts should have au-
thority to prescribe rules of procedure governing judicial

61.31

Standards with Commentary

proceedings. Comprehensive rule-making authority exists in
most state court systems and in the federal courts, and more
limited authority has been conferred on the courts in most
other jurisdictions. The rule-making authority goes beyond
and involves somewhat different considerations than the au-
thority to prescribe administrative policy for the courts,
which is provided for in Section 1.32. The power to pre-
scribe administrative policy is essentially a matter of internal
concern to the court system, and is therefore unqualifiedly
an inherent judicial power. Procedural rules, however, have
broader effects and should be the product of a more widely
reaching process of deliberation and decision. The legislature
and the bar have a legitimate concern with procedural pol-
icy, and the legislature, as the popularly elected representa-
tive of the community as a whole, should have the oppor-
tunity to participate in determining what the policy should be.
It is especially important that the rule-making power be
exercised with prudent and diplomatic regard for legislative
concern about matters of general public interest, even as to
matters that might technically be deemed "procedural."

There are various procedures by which the views of the
legislature and of the bar may be brought to bear in proce-
dural rule-making. The procedure used in many stales is as
follows: The supreme court establishes drafting committees
composed of judges, lawyers, and legal scholars, assisted by
a staff; the committees prepare, publicly circulate, revise,
and finally propose rules and rule changes; the court con-
siders and if necessary revises the proposals and then
promulgates them as rules of court. Another successful pro-
cedure, used in such states as California, involves a rule-
making body that is composed of judges of various courts,
lawyers, legal scholars, and representatives of the legisla-
ture. The rule-making body, assisted by staff, drafts and cir-
culates rule proposals, makes revisions if necessary in light
of responses to the circulation, and then promulgates the

§1.31

Courl Organization

rules or rule changes. The procedure in the federal system
has also proved very successful. A rules committee consist-
ing of judges, lawyers, and legal scholars is established by
the supreme court; the committee drafts and circulates rule
proposals and submits them for approval by the court; if the
court approves them, they are submitted to the legislature
for review; if the legislature does not reject them, they be-
come effective.

The essential features of a balanced and effective rule-
making procedure are the participation of judges, lawyers,
legal scholars, and legislators in deliberations concerning the
rules the provision of staff assistance for research and draft-
ing and public circulation of proposals for review and com-
ment before their adoption. By means of such a procedure,
primary responsibility for procedural rules rests with the
court system. The judiciary has special familiarity with the
problems of applying and enforcing rules of procedure; it can
give attention more promptly and intensively than the legis-
lature to problems of procedure as they arise, and it may be
less susceptible to the influence of special interests that
would oppose or promote procedural change. The judiciary
is also able more freely and easily to enlist the help of spe-
cialists in litigation among the bar in formulating procedural
rules.

The scope of the rule-making authority should extend to
all types of rules that may appropriately be called "proce-
dural" as distinct from "substantive." This includes both
civil and criminal rules, and can include rules of evidence, in
all courts in the system. There is no distinct boundary be-
tween "procedural" rules and rules of "substantive" law,
just as there is none between "procedural" rules and court
administrative regulations. See the Commentary to Sec-
tion 1.11(d). Judicial exercise of the rule-making power
should not encroach on the legislature's supremacy in mat-
ters of substantive law, but the difficult question is how to

§1.31

Standards wilh Commcnlary

identify and preserve this division of responsibilities. All
procedural rules have some effects, often very significant
ones, on the enjoyment of substantive rights. Hence, all pro-
cedural rules have substantive legal implications. At the
same time, because substantive legal rules ordinarily imply
the possibility of enforcement by judicial procedures, almost
all substantive law has procedural implications.

These interconnections make it impossible to define the
scope of the rule-making power in precise and enduring
terms. Furthermore, some clearly procedural rules are of
such great general significance that they should not be modi-
fied except by a procedure, such as legislation or constitu-
tional revision, that involves general political assent. The
right to jury trial, for example, is in this category.

The proper boundaries of the rule-making power must
therefore be worked out by processes that go beyond strict
legal definition. One of these processes is reference to legal
tradition and precedent. In any particular jurisdiction, many
types of rules that could be categorized as either substantive
or procedural have long been regarded as in the province
either of the legislature or of the courts. Thus, statutes of
limitations and rules regarding survival of causes of action
have been treated as substantive and therefore subject to
legislative mandate, while rules of discovery have been
treated as procedural even though they may involve very
sensitive questions of public policy. Due recognition of his-
torical categorizations such as these permits accommodation
of the legislative and judicial spheres of authority without a
general definition of the boundary between them. Another
process for determining the boundary between substance
and procedure involves one form or another of consultation
and joint deliberation. This can be achieved through such
mechanisms as law-revision commissions and ad hoc study
committees and commissions, in which representatives of
the legislature, the bar, and the judiciary are participants.

SI .32

Courl Organization

References;

American Judicature Society, The Judicial Rule-
Making Power in State Court Systems (1967).
Levin & Amsterdam, Legislative Control Over Judicial
Rule-Making: A Problem in Constitutional Revision, 107
U. Pa. L. Rev. 1 (1958).

Wright, Procedural Reform: Its Limitations and Its Fu-
ture, 1 Ga: L; Rev. 563 (1967).

Joiner & Miller, Rules of Practice and Procedure: A
Study of Judicial Rule-Making, 55 Mich. L. Rev. 623
(1957).

New York State Advisory Committee on Practice
& Procedure, Prelim. Report No. 3, Rule-Making
Power (1959).

Curd, Substance and Procedure in Rule-Making, 51 W.
Va.L.Q. 34(1948).

Note, Courts — Rule-Making Power, 43 N.Y.U.L. Rev.
776(1968).

APPENDIX "C"

PROCEDURES FOR THE COT-DUCT OF BUSINESS BY TIE
JUDICIAL CONFERENCE COmiTTEES W,
RULES OF PRACTICE AND PROCEDURE

PROCEDURES FOR THE CONDUCT OF BUSINESS BY THE

JUDICIAL CONFERENCE COMMITTEES ON

RULES OF PRACTICE AND PROCEDURE

Scope

These procedures govern the operations of the Judicial Conference
Committee on Rules of Practice and Procedure (Standing Committee) and
the various Judicial Conference Advisory Committees on Rules of Practice
and Procedure in drafting and recommending new rules of practice and
procedure and amendments to existing rules.

Part I - Advisory Committees

1. Functions

Each Advisory Committee shall carry on "a continuous study of the
operation and effect of the general rules of practice and procedure
now or hereafter in use" in its particular field, taking into
consideration suggestions and recommendations received from any
source, new statutes and court decisions affecting the rules, and
legal commentary. Each Advisory Committee shall submit to the
Standing Committee its recommendations for rules changes.

2. Suggestions and Recommendations

Suggestions and recommendations with respect to the rules should
be sent to the Secretary to the Standing Committee,
Administrative Office of the United States Courts, Washington,
D.C. 20544, who shall acknowledge in writing every written
suggestion or recommendation so received and refer all suggestions
and recommendations to the appropriate Advisory Committee. The
Secretary, in consultation with the Chairman of the Advisory
Committee, shall advise the person making a recommendation or
suggestion of the action taken thereon by the Advisory Committee.

3. ^rafting Rules Changes

a. An Advisory Committee shall meet at such times and
places as the Chairman may authorize.

b. The reporter assigned to each Advisory Committee shall,
under the direction of the Committee or its Chairman,
prepare initial draft rules changes, "Committee Notes"
explaining their purpose and intent, summaries of all
written recommendations and suggestions received bv the
Advisory Committee, and shall forward them to the
Advisory Committee.

c. The Advisory Committee shall then consider the draft
proposed new rules and rules amendments, together with
the Committee Notes, make revisions therein, and submit
them to the Standing Committee, or its Chairman, for
approval of Dublication.

4. Publication and Public Hearings

a. When publication is approved, the Secretary shall arrange
for the printing and circulation of the proposed rules
changes to the bench and bar, and to the public generally,
for comment to be made to the Advisory Committee.
Distribution shall be as wide as possible and shall include
the Chief Justice of the highest court in each State and
all individuals or organizations that request copies of
proposed rules changes. The Secretary shall also send
copies to appropriate legal publishing firms with a
request that the proposed rules changes be included in
their publications.

b. In the light of the time required to permit full
consideration of proposed rule changes by bar
associations, circuit judicial conferences and other
interested groups, a period of at least six months shall
normally be allowed for public comment.

c. An Advisory Committee shall normally conduct public
hearings on all proposed rules changes after adequate
notice and at such times and places as shall be
determined by the Chairman. The proceedings shall be
recorded and a transcript shall be prepared for the
Committee's use. The transcript shall be available to the
public at the Administrative Office of the United States
Courts.

Exceptions to the time for comment and public hearing
requirements of this paragraph may be granted by the
Standing Committee, or its Chairman.

5. Subsequent Procedures

a. At the conclusion of the comment Deriod the reporter
shall prepare a summary of the written comments
received and the testimony presented at public hearings.
The Advisory Committee shall review the proposed rules
changes in the light of the comments and testimony. If
the Advisory Committee makes any substantial change,
an additional period for public comment may be provided.

b. The Secretary to the Standing Committee, in consultation
with the Chairman of the Advisory Committee, shall
advise every person who has commented on a proposed
rules change of the Advisory Committee action thereon.

c. The Advisory Committee shall submit proposed rules
changes and Committee Notes, as finally agreed upon, to
the Standing Committee. Each submission shall be
accompanied by a separate report of the comments
received and shall explain any changes made subsequent
to the original publication. The submission shall also
include minority views of Advisory Committee members
who wish to have seDarate views recorded.

Records

The Chairman of the Advisory Committee shall arrange
for the preparation of minutes of all Advisory Committee
meetings.

The records of an Advisory Committee shall consist of
the written suggestions received from the public; the
written comments received on drafts of proposed rules,
responses thereto, transcripts of public hearings, and
summaries prepared by the reporter; all correspondence
relating to proposed rules changes; minutes of Advisory
Committee meetings; approved drafts of rules changes;
and reports to the Standing Committee. The records
shall be maintained at the Administrative Office of the

United States Courts for a minimum of five years and
shall be available for public inspection during reasonable
office hours. Thereafter the records may be transferred
to a Government Records Center in accordance with
applicable Government retention and disposition
schedules.

c. Copies of records shall be furnished to any person upon
payment of a reasonable fee for the cost of reproduction.

Part n - Standing Committee

Functions

The Standing Committee shall coordinate the work of the several
Advisory Committees, make suggestions of proposals to be studied
by them, consider proposals recommended by the Advisory
Committees, and transmit such proposals with its recommendation
to the Judicial Conference, or recommit them to the appropriate
Advisory Committee for further study and consideration.

8. Procedures

a. The Standing Committee shall meet at such times and places
as the Chairman may authorize.

b. When an Advisory Committee's final recommendations for
rules changes have been submitted, the Chairman and
Reporter of the Advisory Committee shall attend the
Standing Committee meeting to present the proposed rules
changes and Committee Notes.

c. The Standing Committee may accept, reject, or modify a
proposal. If a modification effects a substantial change, the
proposal will be returned to the Advisory Committee with
appropriate instructions.

d. The Standing Committee shall transmit to the Judicial
Conference the proposed rules changes and Committee Notes
approved by it, together with the Advisory Committee
report. The Standing Committee's report to the Judicial
Conference shall include its recommendations and explain any
changes it has made.

9. Records

a. The Secretary shall prepare minutes of all Standing
Committee meetings.

b. The records of the Standing Committee shall consist of the
minutes of Committee meetings, reports to the Judicial
Conference, and correspondence concerning rules changes
including correspondence with Advisory Committee
Chairmen. The records shall be maintained at the
Administrative Office of the United States Courts for a
minimum of five years and shall be available for public
inspection during reasonable office hours. Thereafter the
records may be transferred to a Government Records Center
in accordance with applicable Government retention and
disposition schedules.

c. Copies of records shall be furnished to any person upon
payment of a reasonable fee for the cost of reproduction.

Mr. Burbank. Thank you. In my comments on the previous bill,
H.R. 4144, I suggested that although the role of the Supreme Court
as rule promulgator entails certain costs, including the appearance
of prejudgment and the possibility of harm to the institution, fric-
tion with Congress, changes in the infrastructure and process of su-
pervisory court rulemaking, such as, I believe, H.R. 2633 contains,
should diminish those costs. I also suggested that attention to the
limits of the rulemaking power under the Enabling Acts would di-
minish them further.

In addition, I raised in that letter commenting on H.R. 4144 the
question whether rules promulgated by the Judicial Conference or
some other body would command the same respect within the Fed-
eral system as rules promulgated by the Supreme Court, and,
moreover, would attract emulation by the States so as to foster na-
tional uniformity. Since I submitted those comments, as you point-
ed out, the Court has changed its view on the issue and the Confer-
ence of Chief Justices has gone on record very strongly in favor of
keeping the rulemaking power in the hands of the Supreme Court;
although it does not oppose, I take it that the Court does not
oppose, the authority to delegate their own authority to the Judi-
cial Conference.

In the circumstances I believe that the prudent course is to leave
matters where they lie, although, again, I think it would be quite
consistent with the Chief Justice's last letter, as well as with the
views of the Conference of Chief Justices, to change the language
to enable the Court, if it so chose, to delegate to the Judicial Con-
ference. As I read the Chief Justice's letter, what he is saying is:

On most occasions we are, in fact, going to defer to the Judicial Conference; we
simply want the ability where we think it's really important to exercise a further
layer of review.

The wishes of the Court, it seems to me, should not lightly be dis-
regarded; particularly because, notwithstanding the few cases the
Supreme Court has decided, discussing the question of rulemaking,
the constitutional framework of supervisory rulemaking remains
murky at best. This bill should go far, as I suggested, in reducing
the costs of the Court's involvement, and the Judicial Conference
would only be another rubber stamp. I think we have to recognize
that as a practical matter. And it is not one that, aside from num-
bers, is more obviously, broadly representative than the Supreme
Court, itself. So, my view would be to leave it as it is in H.R. 2633
or change the language to authorize the Court to delegate, if it so
chose, to the Judicial Conference.

I agree with you, as a policy matter one could reasonably go
either way, but to avoid friction with the Court in this area I think
Congress would best accede to its wishes.

Mr. Kastenmeier. Professor Rothstein, do you have any further
comment on the issue?

Mr. Rothstein. It is a very close question, but let me make you
privy to the American Bar Association's thinking on this.

We supported all the power being in the Judicial Conference
without the Supreme Court putting its imprimature on it, because
we felt that is an actuality, what happens anyway, and that it is a
sham to say that the Supreme Court is really doing it. And our

second reason was that questions arise as to the propriety of the
Supreme Court ruling in subsequent cases on rules that it has al-
ready approved, at least in form, in a general way. And whether
those are well founded or ill founded questions that arise in the
public's mind, they do arise, and, therefore, we thought that
making the Judicial Conference the final authority before Congress
was the best way to take care of those two problems.

Mr. Kastenmeier. I'd like to yield to my colleague, the gentle-
man from Illinois.

Mr. Hyde. Well, I thank you, Mr. Chairman. We do have some
questions prepared, but I think the statements covered most of the
material. So, I won't prolong this hearing by asking them, but I
defer to your leadership on this issue.

Mr. Kastenmeier. I thank my colleague.

I would ask Professor Rothstein if the ABA has a position on
whether the supersession language from current law states that
rules — congressionally enacted statutes — should be removed, as is
done in this bill, or not.

Mr. Rothstein. The ABA has not taken a position.

Mr. Kastenmeier. May I ask you, for political edification, wheth-
er or not the ABA has debated or discussed the issue.

Mr. Rothstein. No. It has not; there's no implication to be read.

Mr. Kastenmeier. Nothing to be drawn one way or the other.

I would say to others, I suppose, that I don't — not to suggest that
the Congress has any ultimate wisdom. I've often felt uncomfort-
able with the role of Congress in reviewing rules. But I think it has
more to do with our Federal system as constituted and whether ul-
timate conflicts in this area, how they might best be resolved, not-
withstanding whether one has used an amorphous body of 455
House Members and 100 Senators as having superior, ultimate
wisdom with respect to rules, and as to whether statute ought to be
countermanded to promulgation of rules. That is basically the
policy decision which went into this, I think, rather than other im-
plications to be drawn.

One issue that was raised, as I recall, is in light of adoption of
the substance of Federal rules, particularly of civil procedure.
Should Congress mandate the appointment of representatives of
State courts and various advisory committees, or should we leave
well enough alone?

Do you have any particular view?

Mr. Rothstein. My personal thought, outside what the ABA
thinks — It has expressed no opinion on this. My personal thought
would be that it would be a very good idea to have members of the
State court present in a nonvoting capacity. In my experience with
my work on the ABA, State court judges and State court lawyers
have made enormous contributions, because they show a diversity
of viewpoint that those of us who practice only before Federal
courts and are concerned only with the Federal courts didn't real-
ize existed. And the States are a tremendous laboratory for the
marketplace of competing ideas. And since States are expected to
and do follow the Federal rules, and enact them, and adopt them
themselves later on, it would be very good for their viewpoint to be
reflected.

I do have a little trouble with State court people actually voting
on what the rules would be for the Federal courts, but their input
would be enormously helpful.

Mr. Kastenmeier. Perhaps I ought to also ask you, Professor
Rothstein, about the prospect of this bill in terms of its stated goals
of including the rulemaking process. Do you think it would, as I
think Professor Burbank has stated he thought it would, paren-
thetically have the effect of diminishing for congressional interven-
tion.

Mr. Rothstein. For congressional intervention, yes. For congres-
sional oversight, I think no; I think there is a need. But yes, I think
so. I agree with that.

Mr. Kastenmeier. If the gentleman from Illinois has no further
questions, I will only make an observation. I got the impression
that openness of the rulemaking process, at least as far as the Judi-
cial Conference is concerned, and which was resisted by the Judi-
cial Conference and may still be as far as I know, is more of a moot
question at this point, that you perceive less objection to opening
up the rulemaking process in terms of its openness to the outside
as opposed to past practices.

Do you both, on the openness question, have any feel whether
that is still a contentious matter?

Mr. Rothstein. Well, the Judicial Conference has gone a long
way in accommodating the forces for openness, but they haven't
gone all the way. And some of it is mentioned in our printed testi-
mony. And I think H.R. 2633 opens it up even more. And, in addi-
tion, I think it is a good idea to have it memorialized or mandated
in legislation, because judicial conferences can come and go and
ideas can change.

This is not to say that the Judicial Conference has not made long
strides in this area; it really has. And, quite personally, I have no
personal quarrel at all with what they are doing. But the American
Bar Association does feel that it should be memorialized in legisla-
tion and it should be opened up a bit more. And I think you are
correct, that at least the present Judicial Conference seems to have
recognized that this is the direction to go.

Mr. Burbank. If I may speak to that.

Mr. Kastenmeier. Professor Burbank.

Mr. Burbank. I would be very surprised if the Conference re-
gards this as a vote issue. As I understood their position on previ-
ous bills, the two relevant positions were: One, opposition to pre-
scribing in legislation certain procedures that are prescribed and
were prescribed in the antecedent bill; but, more than that — And I
didn't regard that as terribly important, given what they did
during this process, namely to publish their own procedures, and I
do not believe that they are lightly going to depart from those, so
I'm not worried about that. And, of course, the bill contains a re-
quirement that they publish their procedures, so if they do propose
to depart from them people will know about it.

Where I think the Judicial Conference will continue to have a
great deal of trouble — and I must say, and I alluded to this in both
my prepared statement and in my summary statement earlier, I
think I share some of the concern — is the requirement of open

meetings. I am one of those people who believes that there is a
point at which openness becomes hypocrisy.

I worry a little bit about assimilating the rulemaking process too
much to the legislative process. It is my personal view that notice
and comment rulemaking with response to comments and public
hearings is more than adequate for this process to be publicly ac-
countable. I am concerned particularly because it's not clear to me
that this bill will effect an equation between the rulemaking proc-
ess and the legislative process. That is to say, this bill may be re-
quiring more openness of the rulemakers than Congress has im-
posed upon itself.

The analogy was made by Judge Gignoux, and I think it may be
an accurate one, that at least before there is a concrete proposal
published for comment, for instance, a proposal for a rule, the
proper analogy is staff work by the staff of a Congressman or Sena-
tor. And if that's the case, then it would seem to me, if one is going
to go this way, one would do what the ABA — in fact, the ABA
policy, as I understand it from 1982 — proposed, which is to require
openness only at a certain point, and that point would presumably
be, once a proposed rule has been published for comment and at a
time when action is going to be taken in light of those comments.

I would imagine that the Judicial Conference, even though I
doubt that they would approve of that, would have less difficulty in
terms of the stated objections of Judge Gignoux and others, with
that degree of openness. And personally, I think it would be prefer-
able to what you have in the bill. That's the major area where I
disagree, but I didn't testify on it because my views are already re-
flected in the hearing record, and I take it the subcommittee holds
a different view.

Mr. Kastenmeier. I appreciate those remarks because they are
helpful in judging the disposition of this question. And, indeed, we
may be balancing out objectives.

In any event, in behalf of the subcommittee we wish to thank
you both, Professor Burbank and Professor Rothstein, for your tes-
timony today and your help in the past on this issue.

It is my expectation the Congress will be able to move on this
shortly. With Congressman Hyde's and other of my colleagues'
active interest we should be able to resolve this, certainly in the
99th Congress. We will be having a subsequent hearing on the sub-
ject.

Thank you both for your testimony today.

The subcommittee stands adjourned.

[Whereupon, at 2:51 p.m. the subcommittee was adjourned.]

48-930 0—85 4

Appendix 1

99th CONGRESS
1st Session

H. R. 2633

To amend the provisions of titles 18 and 28 of the United States Code commonly
called the "enabling Acts" to make modifications in the system for the
promulgation of certain rules for certain Federal judicial proceedings, and for
other purposes.

IN THE HOUSE OF REPRESENTATIVES

May 23, 1985

Mr. Kastenmeier introduced the following bill; which was referred to the

Committee on the Judiciary

A BILL

To amend the provisions of titles 18 and 28 of the United
States Code commonly called the "enabling Acts" to make
modifications in the system for the promulgation of certain
rules for certain Federal judicial proceedings, and for other
purposes.

1 Be it enacted by the Senate and House of Representa-

2 lives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Rules Enabling Act of

5 1985".

1 SEC. 2. RULES ENABLING ACT AMENDMENTS.

2 (a) In General. — Title 28 of the United States Code

3 is amended by striking out section 2072 and all that follows

4 through section 2076 and inserting in lieu thereof the follow-

5 ing:

6 "§ 2072. Rules of procedure; power to prescribe

7 "(a) The Supreme Court shall have the power to pre-

8 scribe general rules of practice and procedure (including rules

9 of evidence) for cases (including all bankruptcy matters) in

10 the United States district courts (including proceedings before

11 magistrates thereof) and courts of appeals.

12 "(b) Such rules shall not abridge, enlarge, or modify any

13 substantive right or supersede any provision of a law of the

14 United States.

15 "§ 2073. Rules of procedure; method of prescribing

16 "(a)(1) The Judicial Conference shall prescribe and pub-

17 lish the procedures for the consideration of proposed rules

18 under this section.

19 "(2) The Judicial Conference may authorize the ap-

20 pointment of committees to assist the Conference by recom-

21 mending rules to be prescribed under section 2072 of this

22 title. Each such committee shall consist of a balanced cross

23 section of bench and bar, and trial and appellate judges.

24 "(b) The Judicial Conference shall authorize the ap-

25 pointment of a standing committee on rules of practice and

26 procedure under subsection (a) of this section. Such standing

• HR 2633 IB

1 committee shall review each recommendation of any other

2 committees so appointed and recommend to the Judicial Con-

3 ference rules of practice and procedure and such changes in

4 rules proposed by a committee appointed under subsection

5 (a)(2) of this section as may be necessary to maintain consist-

6 ency and otherwise promote the interest of justice.

7 "(c)(1) Each meeting for the transaction of business

8 under this chapter by any committee appointed under this

9 section shall be open to the public, except when the commit-

10 tee so meeting, in open session and with a majority present,

11 determines that it is in the public interest that all or part of

12 the remainder of the meeting on that day shall be closed to

13 the public, and states the reason for so closing the meeting.

14 Minutes of each meeting for the transaction of business under

15 this chapter shall be maintained by the committee and made

16 available to the public, except that any portion of such min-

17 utes, relating to a closed meeting and made available to the

18 public, may contain such deletions as may be necessary to

19 avoid frustrating the purposes of closing the meeting.

20 "(2) Any meeting for the transaction of business under

21 this chapter by a committee appointed under this section

22 shall be preceded by sufficient notice to enable all interested

23 persons to attend.

24 "(d) In making a recommendation under this section or

25 under section 2072, the body making that recommendation

• HK 2633 IH

1 shall provide a proposed rule, an explanatory note on the

2 rule, and a written report explaining the body's action, in-

3 eluding any minority or other separate views.

4 "(e) Failure to comply with this section does not invali-

5 date a rule prescribed under section 2072 of this title.

6 "§ 2074. Rules of procedure; submission to Congress; ef-

7 fective date

8 "(a) The Supreme Court shall transmit to the Congress

9 not later than May 1 of the year in which a rule prescribed

10 under section 2072 is to become effective a copy of the pro-

11 posed rule. Such rule shall take effect no earlier than Decem-

12 ber 1 of the year in which such rule is so transmitted unless

13 otherwise provided by law. The Supreme Court may fix the

14 extent such rule shall apply to proceedings then pending. The

15 Supreme Court shall also transmit with such proposed rule

16 proposed amendments to any law, to the extent such amend-

17 ments are necessary to implement such proposed rule or

18 would otherwise promote simplicity in procedure, fairness in

19 administration, the just determination of litigation, and the

20 elimination of unjustifiable expense and delay.

21 "(b) Any such rule creating, abolishing, or modifying an

22 evidentiary privilege shall have no force or effect unless ap-

23 proved by Act of Congress.".

24 (b) Advisory Committees for Courts. — Section

25 2077(b) of title 28, United States Code, is amended—

• HK 2633 IH

1 (1) by striking out "of appeals" the first place it

2 appears and inserting ", except the Supreme Court,

3 that is authorized to prescribe rules of the conduct of

4 such court's business under section 2071 of this title"

5 in lieu thereof; and

6 (2) by striking out "the court of appeals" the

7 second place it appears and inserting "such court" in

8 lieu thereof.

9 (c) Clerical Amendment. — The table of sections at

10 the beginning of chapter 131 of title 28 of the United States

11 Code is amended by striking out the item relating to section

12 2072 and all that follows through the item relating to section

13 2076 and inserting in lieu thereof the following:

"2072. Rules of procedure; power to prescribe.

"2073. Rules of procedure; method of prescribing.

"2074. Rules of procedure; submission to Congress; effective date.".

14 SEC. 3. COMPILATION AND REVIEW OF LOCAL RULES.

15 Section 331 of title 28 of the United States Code is

16 amended —

17 (1) in the fourth paragraph, by inserting after

18 "any agency thereof." the following: "The Conference

19 shall periodically compile the rules which are pre-

20 scribed under section 372(c)(ll) of this title and the

21 orders which are required to be publicly available

22 under section 372(c)(15) of this title so as to provide a

23 current record of such rules and orders."; and

• HR 2633 IB

1 (2) by adding after the fifth paragraph the follow-

2 ing new paragraph:

3 "The Judicial Conference shall periodically compile the

4 rules which are prescribed under section 2071 of this title by

5 courts other than the Supreme Court of the United States so

6 as to provide a current record of such rules. The Judicial

7 Conference shall periodically review such rules for consisten-

8 cy with rules prescribed under section 2072 of this title. The

9 Judicial Conference may modify or abrogate any such rule

10 found inconsistent in the course of such a review.".

1 1 SEC. 4. RULES BY DISTRICT COURTS AND ORDERS BY CIRCUIT

12 JUDICIAL COUNCILS AND THE JUDICIAL CON-

13 FERENCE.

14 (a) Rules by Disteict Courts. — (1) Section 2071 of

15 title 28 of the United States Code is amended —

16 (A) by striking out "by the Supreme Court" and

17 inserting "under section 2072 of this title" in lieu

18 thereof; and

19 (B) by adding at the end the following paragraphs:

20 "Any such rule of a district court shall be made or

21 amended only after giving appropriate public notice and an

22 opportunity for comment. Such rule so made or amended

23 shall take effect upon the date specified by the district court

24 and shall remain in effect unless modified or abrogated by the

25 District Court or modified or abrogated by the judicial council

•

• HR 2633 IH

100

1 of the relevant circuit. Copies of such rules so made or

2 amended shall be furnished to the judicial council and the

3 Administrative Office of the United States Courts and be

4 made available to the public".

5 (2) Section 332(d) of title 28 of the United States Code

6 is amended by adding at the end the following new para-

7 graph:

8 "(4) Each judicial council shall periodically review the

9 rules which are prescribed under section 207 1 of this title by

10 district courts within its circuit for consistency with rules pre-

11 scribed under section 2072 of this title. Each council may

12 modify or abrogate any such rule found inconsistent in the

13 course of such a review.".

14 (b) Oedees by Ciecuit Judicial Councils. — Sec-

15 tion 332(d)(1) of title 28 of the United States Code is amend-

16 ed by inserting after the first sentence the following new sen-

17 tence: "Any general order relating to practice and procedure

18 shall be made or amended only after giving appropriate

19 public notice and an opportunity for comment. Any such

20 order so relating shall take effect upon the date specified by

21 such judicial council. Copies of such orders so relating shall

22 be furnished to the Judicial Conference and the Administra-

23 tive Office of the United States Courts and be made available

24 to the public".

• BR 2633 IB

101

1 (c) Rules by Judicial Conference and Circuit

2 Judicial Councils.— Section 372(c)(ll) of title 28 of the

3 United States Code is amended by inserting before "Any rule

4 promulgated" the following new sentence: "Any such rule

5 shall be made or amended only after giving appropriate

6 public notice and an opportunity for comment.".

7 SEC. 5. CONFORMING AND OTHER TECHNICAL AMENDMENTS.

8 (a) Conforming Repeal of Criminal Rules Ena-

9 bling Provisions. — (1) Title 18 of the United States Code

10 is amended by striking out chapter 237.

11 (2) The table of chapters for part LT of title 18 of the

12 United States Code is amended by striking out the item relat-

13 ing to chapter 237.

14 (b) Conforming Repeals Relating to Magis-

15 trates.— (1) Section 3402 of title 18 of the United States

16 Code is amended by striking out the second paragraph.

17 (2) Section 636(d) of title 28 of the United States Code

18 is amended by striking out "section 3402 of title 18, United

19 States Code" and inserting "section 2072 of this title" in lieu

20 thereof.

21 (c) Cross Reference Technical Amendment. —

22 Section 9 of the Act entitled "An Act to provide an adequate

23 basis for the administration of the Lake Mead National

24 Recreation Area, Arizona and Nevada, and for other pur-

25 poses" approved October 8, 1964 (Public Law 89-639) is

• UR 2633 IH

102

1 amended by striking out the sentence beginning "The provi-

2 sions of title 18, section 3402".

3 (d) Organic Act Technical Amendments. — (1)

4 Section 22(b) of the Organic Act of Guam is amended by

5 striking out ", in civil cases" and all that follows through

6 "bankruptcy cases".

7 (2) Section 25 of the Organic Act of the Virgin Islands

8 is amended by striking out ", in civil cases" and all that

9 follows through "bankruptcy cases".

10 SEC. 6. SAVINGS PROVISION.

11 The rules prescribed in accordance with law before the

12 taking effect of this Act and in effect on the date of such

13 taking effect shall remain in force until changed pursuant to

14 the law as modified by this Act.

15 SEC. 7. EFFECTIVE DATE.

16 This Act shall take effect December 1, 1986.

• BR 2633 IH

103

99th CONGRESS
1st Session

H. R. 3550

LN THE HOUSE OF REPRESENTATIVES

October 10, 1985

Mr. Kastenmeiek (for himself, Mr. Moorhead, Mr. Mazzoli, Mr. Synar, Mr.
Frank, Mr. Boucher, and Mr. Kindness) introduced the following bill;
which was referred to the Committee on the Judiciary

A BILL

To amend the provisions of titles 18 and 28 of the United
States Code commonly called the "enabling Acts" to make
modifications in the system for the promulgation of certain
rules for certain Federal judicial proceedings, and for other
purposes.

1 Be it enacted by the Senate and House of Representa-

2 lives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "Rules Enabling Act of

5 1985".

104

1 SEC. 2. RULES ENABLING ACT AMENDMENTS.

2 (a) In General. — Title 28 of the United States Code

3 is amended by striking out section 2072 and all that follows

4 through section 2076 and inserting in lieu thereof the

5 following:

6 "§ 2072. Rules of procedure; power to prescribe

7 "(a) The Supreme Court shall have the power to pre-

8 scribe general rules of practice and procedure (including rules

9 of evidence) for cases (including all bankruptcy matters) in

10 the United States district courts (including proceedings before

11 magistrates thereof) and courts of appeals.

12 "(b) Such rules shall not abridge, enlarge, or modify any

13 substantive right or supersede any provision of a law of the

14 United States except any rule of practice or procedure in

15 effect on the day before the date of the enactment of the

16 Rules Enabling Act of 1985.

17 "§ 2073. Rules of procedure; method of prescribing

18 "(a)(1) The Judicial Conference shall prescribe and pub-

19 lish the procedures for the consideration of proposed rules

20 under this section.

21 "(2) The Judicial Conference may authorize the ap-

22 pointment of committees to assist the Conference by recom-

23 mending rules to be prescribed under section 2072 of this

24 title. Each such committee shall consist of a balanced cross

25 section of bench and bar, and trial and appellate judges.

•HR 3SS0 IH

105

1 "(b) The Judicial Conference shall authorize the ap-

2 pointment of a standing committee on rules of practice and

3 procedure under subsection (a) of this section. Such standing

4 committee shall review each recommendation of any other

5 committees so appointed and recommend to the Judicial Con-

6 ference rules of practice and procedure and such changes in

7 rules proposed by a committee appointed under subsection

8 (a)(2) of this section as may be necessary to maintain consist-

9 ency and otherwise promote the interest of justice.

10 "(c)(1) Each meeting for the transaction of business

1 1 under this chapter by any committee appointed under this

12 section shall be open to the public, except when the commit-

13 tee so meeting, in open session and with a majority present,

14 determines that it is in the public interest that all or part of

15 the remainder of the meeting on that day shall be closed to

16 the public, and states the reason for so closing the meeting.

17 Minutes of each meeting for the transaction of business under

18 this chapter shall be maintained by the committee and made

19 available to the public, except that any portion of such min-

20 utes, relating to a closed meeting and made available to the

21 public, may contain such deletions as may be necessary to

22 avoid frustrating the purposes of closing the meeting.

23 "(2) Any meeting for the transaction of business under

24 this chapter by a committee appointed under this section

•HR 3550 IH

106

1 shall be preceded by sufficient notice to enable all interested

2 persons to attend.

3 "(d) In making a recommendation under this section or

4 under section 2072, the body making that recommendation

5 shall provide a proposed rule, an explanatory note on the

6 rule, and a written report explaining the body's action, in-

7 eluding any minority or other separate views.

8 "(e) Failure to comply with this section does not invali-

9 date a rule prescribed under section 2072 of this title.

10 "§ 2074. Rules of procedure; submission to Congress; ef-

11 fective date

12 "(a) The Supreme Court shall transmit to the Congress

13 not later than May 1 of the year in which a rule prescribed

14 under section 2072 is to become effective a copy of the pro-

15 posed rule. Such rule shall take effect no earlier than Decem-

16 ber 1 of the year in which such rule is so transmitted unless

17 otherwise provided by law. The Supreme Court may fix the

18 extent such rule shall apply to proceedings then pending.

19 "(b) Any such rule creating, abolishing, or modifying an

20 evidentiary privilege shall have no force or effect unless ap-

21 proved by Act of Congress.".

22 (b) Advisory Committees for Courts. — Section

23 2077(b) of title 28, United States Code, is amended—

24 (1) by striking out "of appeals" the first place it

25 appears and inserting ", except the Supreme Court,

•HR 3550 IH

107

1 that is authorized to prescribe rules of the conduct of

2 such court's business under section 2071 of this title"

3 in lieu thereof; and

4 (2) by striking out "the court of appeals" the

5 second place it appears and inserting "such court" in

6 lieu thereof.

7 (c) Clerical Amendment. — The table of sections at

8 the beginning of chapter 131 of title 28 of the United States

9 Code is amended by striking out the item relating to section

10 2072 and all that follows through the item relating to section

1 1 2076 and inserting in lieu thereof the following:

"L'OTL*. Rules of procedure; power to prescribe.

"2073. Rules of procedure; method of prescribing.

"2074. Rules of procedure; submission to Congress; effective date.".

12 SEC. 3. COMPILATION AND REVIEW OF LOCAL RULES.

13 (a) Compilation. — Section 604(a) of title 28 of the

14 United States Code is amended by adding at the end the

15 following:

16 "(18) Periodically compile —

17 "(A) the rules which are prescribed under

18 section 2071 of this title by courts other than the

19 Supreme Court;

20 "(B) the rules which are prescribed under

21 section 372(c)(ll) of this title; and

22 "(C) the orders which are required to be

23 publicly available under section 372(c)(15) of this

24 title;

•HR 3550 IH

108

1 so as to provide a current record of such rules and

2 orders.".

3 (b) Review.— Section 331 of title 28 of the United

4 States Code is amended by inserting after the fifth paragraph

5 the following:

6 "The Judicial Conference shall review rules prescribed

7 under section 2071 of this title by the courts of appeals for

8 consistency with rules prescribed under section 2072 of this

9 title. The Judicial Conference may modify or abrogate any

10 such rule prescribed by a court of appeals found inconsistent

11 in the course of such a review.".

12 SEC. 4. RULES BY CERTAIN COURTS AND ORDERS BY CIRCUIT

13 JUDICIAL COUNCILS AND THE JUDICIAL CON-

14 FERENCE.

15 (a) Rules by Certain Courts. — (1) Section 2071 of

16 title 28 of the United States Code is amended —

17 (A) by inserting "(a)" before "Any";

18 (B) by striking out "by the Supreme Court" and

19 inserting "under section 2072 of this title" in lieu

20 thereof; and

21 (C) by adding at the end the following:

22 "(b) Any rule prescribed by a court, other than the Su-

23 preme Court, under subsection (a) shall be prescribed only

24 after giving appropriate public notice and an opportunity for

25 comment. Such rule shall take effect upon the date specified

•HR 3S50 IH

109

1 by the prescribing court and shall have such effect on pending

2 proceedings as the prescribing court may order.

3 "(c)(1) A rule of a district court prescribed under subsec-

4 tion (a) shall remain in effect unless modified or abrogated by

5 the judicial council of the relevant circuit.

6 "(2) Any other rule prescribed by a court other than the

7 Supreme Court under subsection (a) shall remain in effect

8 unless modified or abrogated by the Judicial Conference.

9 "(d) Copies of rules prescribed under subsection (a) by a

10 district court shall be furnished to the judicial council, and

11 copies of all rules prescribed by a court other than the Su-

12 preme Court under subsection (a) shall be furnished to the

13 Director of the Administrative Office of the United States

14 Courts and made available to the public.

15 "(e) If the prescribing court determines that there is an

16 immediate need for a rule, such court may proceed under this

17 section without public notice and opportunity for comment,

18 but such court shall promptly thereafter afford such notice

19 and opportunity for comment.

20 "(0 No rule may be prescribed by a district court other

21 than under this section.".

22 (2) Section 332(d) of title 28 of the United States Code

23 is amended by adding at the end the following new para-

24 graph:

•HR 3550 IH

110

1 "(4) Each judicial council shall periodically review the

2 rules which are prescribed under section 2071 of this title by

3 district courts within its circuit for consistency with rules pre-

4 scribed under section 2072 of this title. Each council may

5 modify or abrogate any such rule found inconsistent in the

6 course of such a review.".

7 (b) Orders by Circuit Judicial Councils. — Sec-

8 tion 332(d)(1) of title 28 of the United States Code is amend-

9 ed by inserting after the first sentence the following new sen-

10 tence: "Any general order relating to practice and procedure

11 shall be made or amended only after giving appropriate

12 public notice and an opportunity for comment. Any such

13 order so relating shall take effect upon the date specified by

14 such judicial council. Copies of such orders so relating shall

15 be furnished to the Judicial Conference and the Administra-

16 tive Office of the United States Courts and be made available

17 to the public".

18 (c) Rules by Judicial Conference and Circuit

19 Judicial Councils. — Section 372(c)(ll) of title 28 of the

20 United States Code is amended by inserting before "Any rule

21 promulgated" the following new sentence: "Any such rule

22 shall be made or amended only after giving appropriate

23 public notice and an opportunity for comment.".

»HR 3S50 IH

Ill

1 SEC. 5. CONFORMING AND OTHER TECHNICAL AMENDMENTS.

2 (a) Conforming Repeal of Criminal Rules Ena-

3 bling Provisions.— (1) Title 18 of the United States Code

4 is amended by striking out chapter 237.

5 (2) The table of chapters for part II of title 18 of the

6 United States Code is amended by striking out the item relat-

7 ing to chapter 237.

8 (b) Conforming Repeals Relating to Magis-

9 trates.— (1) Section 3402 of title 18 of the United States

10 Code is amended by striking out the second paragraph.

1 1 (2) Section 636(d) of title 28 of the United States Code

12 is amended by striking out "section 3402 of title 18, United

13 States Code" and inserting "section 2072 of this title" in lieu

14 thereof.

15 (c) Cross Reference Technical Amendment.—

16 Section 9 of the Act entitled "An Act to provide an adequate

17 basis for the administration of the Lake Mead National

18 Recreation Area, Arizona and Nevada, and for other pur-

19 poses" approved October 8, 1964 (Public Law 89-639) is

20 amended by striking out the sentence beginning "The provi-

21 sions of title 18, section 3402".

22 (d) Organic Act Technical Amendments. — (1)

23 Section 22(b) of the Organic Act of Guam is amended by

24 striking out ", in civil cases" and all that follows through

25 "bankruptcy cases".

•HK 3SS0 1H

112

1 (2) Section 25 of the Organic Act of the Virgin Islands

2 is amended by striking out ", in civil cases" and all that

3 follows through "bankruptcy cases".

4 SEC. 6. SAVINGS PROVISION.

5 The rules prescribed in accordance with law before the

6 taking effect of this Act and in effect on the date of such

7 taking effect shall remain in force until changed pursuant to

8 the law as modified by this Act.

9 SEC. 7. EFFECTIVE DATE.

10 This Act shall take effect December 1, 1986.

113

BEFORE THE JUDICIAL CONFERENCE
ADVISORY COMMITTEE ON CIVIL RULES

TESTIMONY OF THE ALLIANCE FOR JUSTICE
ON THE 1984 PROPOSAL TO AMEND RULE 68

Submitted on behalf of

the Alliance for Justice by:

Laura W.S. Macklin

Assistant Professor

Georgetown University Law Center

Institute for Public Representation

600 New Jersey Avenue. N.W.

Washington, D.C. 20001

(202) 624-8390

January 28, 1985

114

Introduction

The following testimony on the proposal to amend Rule 68 of
the Federal Rules of Civil Procedure is presented on behalf of the
Alliance for Justice, a national association of twenty-six public
interest law organizations.1 The Alliance's members include civil
rights, environmental, mental health, education, employment, and
consumer law groups. 2 working on behalf of these groups and the
persons they serve, one of the Alliance's foremost purposes is to
ensure access to the judicial process for those who have
historically lacked the resources to assert their legal rights,
including Black and Native Americans, poor persons, consumers,
women, children, and persons institutionalized in mental health

1. In addition to this testimony, the Alliance will submit
(before April 1, 1985) more detailed comments on the impact the
proposed amendments would have on the attorney-client
relationship, and on any questions that arise during the hearing
and merit additional comment.

2. Members of the Alliance include: Business and Professional
People for the Public Interest, the Center for Law and Social
Policy, the Center for Law in the Public Interest, the Center for
National Policy Review, the Center for Science in the Public
Interest, Consumers Union, the Education Law Center, the
Employment Law Center, the Environmental Defense Fund, Equal
Rights Advocates, the Food Research and Action Center, Harmon,
Weiss & Jordan, the Institute for Public Representation, the
Juvenile Law Center, the Mental Health Law Project, the NOW Legal
Defense and Education Fund, the National Education Association,
the National Wildlife Federation, the National Women's Law Center,
the Native American Rights Fund, the Natural Resources Defense
Council, New York Lawyers for the Public Interest, Public
Advocates, Inc., the Sierra Club Legal Defense Fund, the Women's
Law Project, and the Women's Legal Defense Fund.

115

facilities. Members of the Alliance have litigated a number of
significant cases on behalf of plaintiffs in these groups, and in
so doing have often enabled their clients to fulfill the "private
attorney general" role envisioned by Congress when it enacted
public laws such as the Civil Rights Attorney's Fees Awards Act of
1976 (42 U.S.C. § 1988) .3

Often, Alliance members have been able to enforce their
clients' constitutional or statutory rights through a negotiated
settlement of litigation.4 However, some cases have proven

3. For examples of recent litigation in which Alliance members
represented such plaintiffs, see Columbus Board of Education v.
Penick. 443 U.S. 449 (1979) (holding systemwide school
desegregation remedy proper on the basis of the lower court's
findings and conclusions as to unconstitutional, racially
segregative purpose and impact of school board's conduct); Liddell
v. Board of Education. 491 F. Supp. 351 (E.D. Mo. 1980), affld,
667 F.2d 643 (8th Cir. 1981), cert, denied sub nom. Caldwell v.
Missouri. 454 U.S. 1081, 1091 (1981) (holding St. Louis Board of
Education and State of Missouri liable for the establishment and
maintenance of a racially segregated public school system within
St. Louis); Larry P. v. Riles. 495 F. Supp. 926 (N.D. Cal. 1979)
(challenging the use of standardized IQ tests to place Black
school children in programs for mentally retarded students) .

4. £££, e.g., Officers for Justice v. Civil Service Commission.
473 F. Supp. 801 (N.D. Ca. 1979), aff 'd. 688 F.2d 615 (9th Cir.
1982) (approving a detailed settlement of race and gender
employment discrimination case against the San Francisco police
department); Parents Without Partners v. Massingaf C.A. No.
JH-83-4313 (D. Md. consent decree dated Jan. 11, 1984) (state
defendants agreed to provide child support enforcement services to
all eligible parents in compliance with federal law) ; Cameron v.
Montgomery County Child Welfare Service. 471 F. Supp. 761 (E.D.
Pa. 1979) (denying summary judgment where "deprived" child alleged
failure to provide him with adequate care, treatment, and services
which would have enabled him to return home) (case later settled);
Santiago v. City of Philadelphia. 435 F. Supp. 136 (E.D. Pa. 1977)
(denying in part motion to dismiss complaint that conditions and

(Footnote continued)

116

difficult to conclude through settlement, for a wide variety ot
reasons. In certain instances, for example, judicial resolution
of an unsettled question of law has been an important precondition
to settlement. ^ Hence, although Alliance members appreciate the
role that settlement can play in their clients' representation,
they are also aware of the fact that settlement, just as
litigation, is a limited tool. 6

Summary of Testimony

The Alliance for Justice opposes the promulgation of the
proposed amendments to Rule 68 on a number of grounds. The 1984
proposal, like its 1983 predecessor, is a drastic,
defendant-oriented measure that will undermine and in many
respects destroy the incentive system Congress created for
citizens to serve as "private attorneys general" in numerous

4 . (continued)

treatment of Youth Study Center deprived juveniles of
constitutional rights) (case later settled); Consumers Union v.
Virginia State Bar. C.A. No. 75-0105-R (E.D. Va. 1975) (settled
after suing for the right to provide information about law firms
in a legal directory without being subject to disciplinary
action) .

5. £££, e.g.. Hills v. flautreaux. 425 U.S. 284 (1976) (settled
following the Supreme Court's determination of whether and to what
extent area-wide relief should be available to remedy deliberate
racial discrimination in housing) .

6. In addition to litigation, members of the Alliance often use
other methods, such as legislative and administrative advocacy, to
defend or advance their clients' rights.

117

categories of public law litigation. Moreover, in these
categories of litigation (covered by asymmetrical fee-shifting
laws), and in litigation generally, the proposal will create a
series of problems for litigants, attorneys, and the courts. The
changes made by the Advisory Committee in the 1984 draft have not
eliminated these problems.

Two issues must be examined carefully by the Advisory
Committee at the outset. First, is there really a need for a
proposal of this type, and has that need been demonstrated? In
arguing for the proposal, proponents have referred to "enormous
delays" in federal court litigation, and also to their desire to
prompt more case settlements, more rapidly. However, the
statistics that are available suggest a general profile of
reasonable promptness and an increasing incidence of non-trial
dispositions in federal court cases. Even assuming arguendo that
there is a small number of federal court cases with an overly long
life, should the Advisory Committee recommend a measure that will
also have a severe adverse impact on the majority of litigants
whose cases are promptly adjudicated or settled? The Alliance
submits that it should not, and that the proposal at issue here is
not an appropriate or acceptable mechanism for addressing delay in
a small fraction of cases.

The second issue that must be examined at the outset is the
question of Supreme Court authority to promulgate a rule of this
type. The Rules Enabling Act limits the Court to the promulgation

118

of rules prescribing practice and procedure for the federal
courts, and prohibits the adoption of rules which "abridge,
enlarge, or modify any substantive right." 28 U.S.C. § 2072.

The rule proposed here would modify and abridge substantive
rights, principally because it works in derogation of the
incentive system Congress designed in enacting a number of
fee-shifting statutes. Although proponents of the measure have
maintained that it does not modify those laws, they are apparently
not aware that proposals very similar to (in fact, in some
respects less drastic than) this one have been considered and
rejected by Congress three times in recent bills to amend certain
of the fee-shifting statutes.7 Given Congress* rejection of these
proposed modifications, and given the Supreme Court's emphasis on
the fact that changes in the rules for allocating attorney's fees
should be made by Congress and not by the Court (£££ Alyeska v.
Pipeline Service Co. v. Wilderness Society. 421 U.S. 240 (1975)),
the Advisory Committee snould not recommend a measure of this type
to the Court.

7. Had Judge Mansfield and Professor Miller been aware of these
congressional deliberations (discussed in Part III.C, below,
pages 29 to 33) , it is unlikely they would have claimed, in
attempting to argue that this proposal is not inconsistent with
congressional enactments and policies, that "Congress might well
view promotion of settlement by award of fees as something to be
encouraged, particularly when the rejection is unreasonable under
the circumstances." W.R. Mansfield and A.R. Miller, Proposed
Amendments of Rule 68 — Background Memorandum at 7-8 (Apr. 15,
1984) .

119

The parts of the 1984 draft which allow district courts to
make highly discretionary determinations about whether to impose
Rule 68 sanctions and in what amount may protect some litigants,
but will engender numerous problems for others. These provisions
will result in a sizeable volume of collateral litigation on fee
and sanctions issues — litigation with a scope of discovery and
proof potentially broader than discovery and proof on the merits.
It is possible, if indeed not likely, that if the amendments are
adopted ^district courts will devote increasing amounts of time to
collateral fee and sanctions adjudication, and decreasing amounts
of time to interpreting and issuing orders for the enforcement of
federal laws and constitutional rights. Additionally (as the
Alliance for Justice will explain in detail in written comments to
be filed shortly after the hearing) , the proceedings on fee and
sanctions issues under an amended Rule 68 will exacerbate existing
conflicts and problems in the attorney-client relationship and
also create new conflicts and problems in that relationship.

For all of the foregoing reasons, discussed in more detail in
the following pages, the Alliance for Justice submits that the
proposal to amend Rule 68 is highly ill-advised, and should be
withdrawn by the Advisory Committee.

120

I. The Advisory Committee Has Not Demonstrated That
There Is a Need For the Proposed Amendments.

Given the substantial impact that the proposed amendments
will have, it is incumbent upon the members of the Advisory
Committee urging their adoption to demonstrate that there is a
need for changes of this type. The Committee has indicated that
the proposal "is designed to encourage early settlements, avoid
protracted litigation, and thus reduce the current enormous delay
and expense that marks dispute resolution in most federal
courts."8 However, the Committee has not released any statistics
or other information documenting the assertion that "enormous
delay" currently characterizes most federal court proceedings.

In fact, the statistics that are available suggest that
litigants in the federal courts are not, in most cases,
experiencing enormous delays. According to the 1983 Annual Report
of the Director of the Administrative Office of the United States
Courts, the overall median time from filing to disposition for
civil cases (excluding recovery of overpayment and enforcement of
judgment cases) was nine months, and the median time for all cases

8. Transmittal Letter from the Honorable Walter R. Mansfield to
the Committee on Rules of Practice and Procedure (Aug. 1984),
reprinted in 590 F. Supp. at CXXXVII (1984).

121

disposed of during or after trial was nineteen months. 9 These

figures suggest a pattern of relatively prompt dispositions, even

for cases that proceed to trial — a pattern similar to that

outlined in a 1978 sample of cases drawn from federal and state

courts in several jurisdictions by researchers at the Civil

Litigation Research Project. These researchers observed that

"more than half of the cases [were] terminated within the first

year, and a very substantial number, much more than half, within

the first two years. In all but a couple of courts, no more than

10 percent of the cases remain [ed] after a 24-month interval."10

They also observed:

The probability of a case going to trial, in
both the state and federal courts, is clearly
highest in [the] 8- to 20-month period [after
filing of the complaint], and one of our very
tentative conclusions is that a large number
of cases, at least in our sample, reach trial
without enduring an overly long case life.
This is not a conclusive finding, but if it is
true that there is not as long a delay as has
been thought between the filing of a case and
when it goes to trial, that is obviously grist
for the mill, something to be pursued.11

Disposition statistics of this type do not suggest significant

9. Annual Report of the Director of the Administrative Office of
the United States Courts 142 (1983).

10. See Grossman, "The Pace of Court Activity," in Adler,
Felstiner, Hensler and Peterson (eds) , The Pace of Litigation:
Conference Proceedings (Santa Monica: The Rand Corporation, 1982)
at 62.

11. Id^. at 66-67.

122

delays; nor do they provide support for the type of drastic remedy
proposed in the Rule 68 amendments.

There remains, of course, the possibility that discovery
disputes or abuses may occasion delay. However, Rules 26, 27, 30,
and 37 already provide specific, carefully structured measures for
addressing these problems. Provisions of the type contained in
the Rule 68 proposal are neither appropriate for this purpose, nor
likely to be effective.

Additionally, to the extent that the proposal is intended to
increase the number of cases in which the parties settle rather
than proceeding to trial, or to increase the pace at which cases
are settled, neither the Advisory Committee nor any other
organization has demonstrated that there is a need for changes of
this type. In fact, the percentage of cases in the federal courts
which reach trial has been gradually declining, from ten percent
in 1970 to five and four-tenths percent in 1983. 12 There has been
no showing that to the extent one might identify certain cases as
cases that should settle, these cases are not settling now. Nor
has there been any showing that cases that currently settle after
several steps in discovery should be settling sooner.

Nor, for that matter, has anyone demonstrated that current
settlement incentives are inadequate, or that the kinds of

12. Annual Report of the Director of the Administrative Office of
the United States Courts 142 (1983).

123

penalties the Advisory Committee's proposal would add are

appropriate and workable. As one district judge pointed out in

opposing the 1983 draft of the proposal to amend Rule 68:

It has been my experience that the economic
incentives to accept reasonable offers are
generally more than sufficient in the
settlement of cases. While it is true that
sometimes reasonable offers may be rejected
by a party, these are only in exceptional
matters. I do not believe a rule change as
sweeping as proposed in the above amendment
to Rule 68 is required or even desirable. 13

Finally, as members of the Advisory Committee are aware,
trials can and do serve useful functions, both in certain
individual cases and more broadly in our system of justice. In an
individual case, a trial provides a record for the fair
aa judication of a dispute that has resisted informal resolution.
In a broader, more systemic sense, the trial of a significant
dispute between two or more parties provides a firm foundation for
the exposition and enforcement of constitutional, statutory, and
other public policies.14

A significant proportion of our federal laws, including our
civil rights laws, are premised on the assumption that persons
seeking redress from the government, or from other private

13. Letter from United States District Judge James McGirr Kelly
(E.D. Pa.) to Committee on Rules of Practice and Procedure (Dec.

14, 1983) (on file at the Administrative Office of the United
States Courts) .

14. £££ Fiss, Against Settlement. 93 Yale L.J. 1073, 1085-86
(1984) .

124

parties, will be able to demonstrate that the problems they allege
actually exist, and that the difficulties or wrongs for which they
seek redress actually took place. 15 For this reason, if for no
other, we snould hesitate before adopting federal court rules that
make it difficult if not impossible for litigants to avail
themselves of our traditional judicial processes for demonstrating
one's entitlement to redress and obtaining that redress.

The Alliance for Justice is not alone in opposing the Rule 68
amendments for these reasons, and for the other reasons set forth
in its testimony and comments. As members of the Advisory
Committee will recall, the Alliance was one of numerous witnesses
and commenters who opposed the 1983 version of Rule 68
amendments.16 It was the Alliance's view, and the view of many
bar associations, government officials, and law professors, that
the 1983 proposal, if adopted, would have sharply reduced access
to the federal courts for litigants of limited means, created
several new proDlems and seriously exacerbated existing
difficulties in attorney-client relationships, engendered a large
volume of collateral proceedings on attorney's fee issues,

15. See generally Days, Seeking a New Civil Rights Consensus. 112
Daedalus (Journal of the American Academy of Arts and Sciences)
197, 207-214 (Fall 1983).

16. See Testimony of the Alliance for Justice on Proposed
Amendments to Rule 68 (Jan. 13, 1984), and Comments (Mar. 7, 1984)
(on file at the Administrative Office of the United States
Courts) .

125

conflicted with numerous federal fee-shifting statutes and raised
serious questions as to the authority vel non of the Supreme Court
to prescribe amendments of this type via rulemaking.17

More than a dozen prominent state, city, and county bar
associations studied the 1983 proposal; all but one (a
"defendants' bar association") opposed it.18 Public interest
groups unanimously opposed it. 19 Numerous law faculty members

17. Id. . see also testimony and comments of those organizations
and individuals listed in notes 18 to 21, below.

18. The bar associations who testified or submitted comments in
opposition to the 1983 proposal included the Association of the
Bar of the City of New York, the National Bar Association, the
Federal Courts and Practice Committee of the Los Angeles County
Bar Association, the Los Angeles Chapter of the Federal Bar
Association Rules Committee, the Federal Courts Committee ot the
California State Bar, and Ohio State Bar, the Civil Practice and
Procedure Committee of the Arizona State Bar, the Committee on the
Federal Courts of the New York County Lawyers Association, the
Illinois State Bar Association, the Philadelphia Bar Association,
the Administrative Law and Litigation Divisions of the District of
Columbia Bar, the Federal Litigation Section of the Federal Bar
Association, and the National Association of Railroad Trial
Counsel. The American College of Trial Lawyers testified in
support of the proposal. (Copies of the foregoing testimony and
comments, and of the submissions cited in notes 19 to 21 below,
are on file at the Administrative Office of the United States
Courts.)

19. In addition to Alliance members, public interest groups
testifying or filing comments in opposition to the proposal
included the American Civil Liberties Union, the NAACP Legal
Defense Fund, Inc., the Mexican American Legal Defense Fund, and
the Public Citizen Litigation Group.

48-930 0—85 5

126

reviewed the proposal and warned the Committee aDout its
proDlems.20 Government officials and agencies who reviewed and
commented on the proposal advised against it,21 and suggested that
matters of this type were within Congress' jurisdiction, not the
Advisory Committee's or Supreme Court's.22 The only public
support for the proposal came in a series of short letters from
individual lawyers who endorsed the idea in conclusory terms. It
is on this record ot minimal support that the proposal is advanced
again, in a form that raises many similar problems as well as new
ones.

20. See, e.g.. testimony of Professor Judith Resnik (U.S.C.)
(endorsed by, inter alia, the Society of American Law Teachers);
comments from Protessor Owen Fiss (Yale); bjifc. _£f_^ comments of
Professor John Leubsdorf (Boston University) (endorsing the idea
but suggesting that litigation conducted under fee-shifting
statutes be exempted) .

21. 2S& Letter from D. Lowell Jensen, Acting Deputy Attorney
General, U.S. Dept. of Justice, to the Honorable Edward T. Gignoux
(Feb. 28, 1984) (hereinafter cited as "Justice Department
Comments"); Letter from Daniel Goelzer, General Counsel, SEC, to
the Honorable Edward T. Gignoux (Mar. 14, 1984); and Letter from
Senator Arlen Specter to Committee on Rules of Practice and
Procedure (Feb. 28, 1984); fififi .also. Memo from Shirley Hufstedler
(former circuit judge and Education Dept. Secretary) to the
Committee on Rules ot Practice and Procedure.

22. See Justice Department Comments at 2-3.

127

II. The Proposal Will Work in Derogation of

Plaintiffs' Rights Under Numerous Federal
Fee-Shiftina Statutes

Alliance for Justice members often litigate on their clients'
behalf under one of several federal fee-shifting statutes designed
to encourage plaintiffs to enforce public laws as "private
attorneys general." Civil rights, environmental, and consumer
laws are good examples.23 Each of these laws has an asymmetrical
fee-shifting provision — a section providing that a plaintiff who
litigates and wins will be entitled to recover attorney's fees,
but that if the plaintiff loses and defendant wins, there will
generally be no fee-shifting. 24

23. See, e.g. . 42 U.S.C. § 1988 (Civil Rights Attorney's Fees

(Clean Air Act) ; 42

Awards Act of 1976); 42 U
U.S.C. §§ 7604(d), 7622(b
1977); 16 U.S.C. § 1540 (g
U.S.C. § 1349(a) (5) (Oute
of 1978) ; 42 U.S.C. § 697
Act ot 1976) ; 30 U.S.C. §
Reclamation Act of 1977) ;
(Truth- in-Lending Act) .

Other federal laws w
to encourage private enfo
of Alliance members, incl
Antitrust Act); and 5 U.S

.S.C. § 7607(f)

) (2) (B) (Clean Air Act Amendments of

) (4) (Endangered Species Act of 1973); 43

r Continental Shelf Lands Act Amendments

2(e) (Resource Conservation and Recovery

1270(d) (Surface Mining Control and

and 15 U.S.C. § 1640(a)

ith asymmetrical fee-shifting provisions
rcement, less frequently used in the work
ude, for example, 15 U.S.C. § 15 (Clayton
.C. § 552a(g)(B) (Privacy Act).

24. A prevailing defendant is eligible for fees under
asymmetrical fee-shifting statutes only in those rare
circumstances in which the plaintiff's action was "brought in bad
faith and was clearly frivolous, vexatious, or brought for
harassment purposes" (R. Larson, Federal Court Awards of
Attorney's Fees 85-91 (1981)), or pursuant to a slightly broader
standard applicable to Title VII litigation, if a plaintiff's
claim "was frivolous, unreasonable, or groundless" (Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978)).

128 v

In enacting the Civil Rights Attorney's Fees Awards Act of

1976 (42 U.S.C. S 1988), a leading example of these asymmetrical

fee-shifting statutes, Congress made its purposes clear. The

fee-shifting provision was intended to encourage persons whose

civil rights have been violated to defend their rights in court,

and also to encourage attorneys to represent them. As the Senate

Report explains:

In many cases arising under our civil rights
laws, the citizen who must sue to enforce the
law has little or no money with which to hire
a lawyer. If the private citizens are to be
able to assert their civil rights and if
those who violate the nation's fundamental
laws are not to proceed with impunity, then
citizens must have the opportunity to recover
what it costs them to vindicate these rights
in court. 25

Members of Congress repeatedly stressed the importance of fee

awards for plaintiffs and their counsel in encouraging litigation

by "private attorneys general:"

All of [the] civil rights laws depend
heavily upon private enforcement, and fee
awards have proved an essential remedy if
private citizens are to have a meaningful
opportunity to vindicate the important
Congressional policies which these laws
contain.2**

25. S. Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976), reprinted in
1976 U.S. Code Cong. & Ad. News, 5908, 5910.

26. Id. : see also H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1
(1976) .

129

The proposal to amend Rule 68 will, if adopted, work in
derogation of plaintiffs' rights under these fee-shifting
statutes. Both the 1983 and the 1984 versions of the proposal are
drafted in a form that will provide defendants with a mechanism
for reducing or eliminating the fee recoveries which Congress
intended as an incentive to encourage the enforcement of public
laws and policies. Roth proposals are wholly defendant-oriented
in their impact on parties litigating under asymmetrical
fee-shifting laws; both provide defendants with new rights and
increased leverage, and make concomitant reductions in the rights
and leverage available to plaintiffs.

The importance of this factor in our assessment of the
pending Rule 68 proposal cannot be overemphasized. Although the
Advisory Committee has asserted "[n]othing in the [proposed] rule
affects the court's statutory authority to award attorney's fees
to a prevailing party in certain types of cases,"27 the impact of
the proposal could not be clearer or more destructive of the
incentive system Congress intended to create when it enacted
fee-shifting statutes. The Advisory Committee's proposal gives
defendants a method (albeit one subject to district court
discretion) to take away with the left hand what Congress has
conferred with the right.

27. £££ draft Committee Note, paragraph 13, reprinted in 590 F.
Supp. at CL (1984) .

130

Specifically, this is how the new proposal would work: On
its face, the 1984 draft purports to provide each side, plaintiff
and defendant, with an opportunity to recover a "sanction" (based
in significant part on "costs and expenses, including ...
attorney's fees") if an opponent "unreasonably" rejects a
settlement offer. Since defendants in most cases currently have
no statutory right to recover their attorney's fees from
plaintiffs, the opportunity to recover a sanction (based on fees
incurred) in an amended Rule 68 will furnish defendants with a
substantial incentive to make settlement offers.28

However, plaintiffs, who already have a statutory right if
they prevail to recover attorney's fees for the entire course of
litigation from defendants, gain no additional benefit or leverage
from the Advisory Committee's proposal. Even if a plaintiff makes
an offer and a defendant unreasonably refuses it, it is unlikely
that under the new rule a district judge will award plaintiff a
sanction for the defendant's refusal to settle, for two reasons.
First, the proposed amendments do not, by their terras, direct the

28. A defendant seeking to maximize his advantage under the new
rule would make a relatively low settlement offer, one just high
enough to ensure that the court would not later find it a "sham."
If the offer were to be accepted because the plaintiff does not
want to risk a Rule 68 sanction, then the defendant will have
succeeded in settling the case for less than he might have other-
wise had to pay. If the plaintiff were to reject the Rule 68
offer, and the defendant thinks he (defendant) has a good chance
of winning the case (and thereby avoiding liability on the merits
and recovering a Rule 68 sanction), he may be likely to decline
any counter-offer or subsequent settlement offer. In this
respect, the new rule may encourage more defendants to take cases
to trial.

131

district judge to make an award in those circumstances. Rather,
the amendments direct the district judge to calculate sanctions
based on the "attorney's fees incurred by the offeror;" hence, it
is unlikely that a district court will view a plaint if f -of fer or
who has prevailed (and recovered fees statutorily) as having
"incurred" fees upon which a sanction could be based. Second,
even assuming that this language in the proposal were to be
altered so as to make fee sanctions under a new Rule 68 bilateral,
it is unlikely that a district judge would award a plaintiff, who
has just recovered judgment on the merits and a statutory fee
award, a significant additional monetary recovery in the form of a
Rule 68 sanction, notwithstanding the unreasonableness of a
defendant-offeree's refusal to settle. In these critical
respects, the Rule 68 proposal offers defendants, and not
plaintiffs, incentives and rewards for making settlement otf ers.
Moreover, under the Rule 68 proposal, these incentives and
rewards for defendants are to be provided at the price of
diminishing, offsetting, or erasing, and in some cases even
outweighing, the incentives that Congress enacted to encourage
private enforcement of certain public laws and policies. The
Advisory Committee proposes to reduce the plaintiff's attorney's
fee recovery by subtracting the amount of a "sanction" (reflective
of, inter alia, defendant's post-offer fees). Depending on
defendant's choice of counsel and that counsel's hourly rate, this
reduction could be substantial, indeed it could outweigh the

132

amount of the plaintiff's statutory fee entitlement.

To recapitulate briefly, the Advisory Committee proposes that
plaintiffs (who are currently entitled under federal fee-shifting
statutes to recover statutory fee awards if they prevail) should,
if they refuse a settlement offer, pay defendants a "sanction"
(based in substantial part on the amount of defendants' post-offer
fees) . The result will be that plaintiffs' statutory fee
entitlement, which Congress intended as an incentive for
plaintiffs and their attorneys to bring litigation enforcing
federal laws, will be at a minimum greatly diminished, and in many
cases entirely eradicated or outweighed by the monetary sanctions
assessed against them. In addition, as we explain in Part VI
(below, pages 42 to 44) , lawyers will be discouraged from
representing plaintiffs in actions to enforce federal laws by the
prospect ot serious attorney-client problems and conflicts
engendered by the implementation of this proposal.

Nevertheless, as noted above, the Advisory Committee contends
that "[njothing in the rule affects the court's statutory
authority to award attorney's fees to a prevailing party in
certain types of cases. "29 This is wrong. It is tantamount to
saying, for example, that a rule which limited the duration of an
antitrust case to six months would not affect the courts'

29. See draft Committee Note, paragraph 13, reprinted in 590 F.
Supp. at CL.

133

statutory authority to hear and decide antitrust cases. 30

In the foregoing respects, the proposal before the Advisory
Committee is flatly inconsistent with the asymmetrical
fee-shifting laws and at odds with their underlying congressional
policies. This fact cannot be altered or obscured by vesting
discretion in district judges to apply the new rule when they feel
a plaintiff has been "unreasonable," or by calling the monetary
awards under the new rule "sanctions" rather than "attorney's
fees. "

It is simply incorrect to assert, as some members of the
Advisory Committee have, that this proposal can be viewed as
consistent with congressional enactments and objectives because
"Congress might well view promotion of settlement by award of fees
as something to be encouraged."31 Two facts reveal the fallacy of
such an assertion. First, Congress, regardless of what its views
"might" be, did not include defendant-oriented mechanisms of the

30. The last sentence in paragraph 13 of the draft Committee Note
is ambiguous and may be misleading. It reads: "Even without [the
proposed amendments to] the rule the court already has the power
in determining the value of the attorney's services under a fee
award statute to take into consideration a party's refusal to
accept a reasonable offer that, if accepted, would have eliminated
the necessity for further legal services from the date of the
offer." However, existing law does not establish whether and to
what extent the district courts have the authority to reduce a
plaintiff's attorney's fee award for an "unreasonable" refusal to
settle. This is one of the issues before the Supreme Court in
Marek v. Chesny. No. 83-1437 (U.S. argued Dec. 5, 1984).

31. .£££ W.R. Mansfield and A. R. Miller, Proposed Amendment of
Rule 68 — Background Memorandum at 7-8 (Apr. 15, 1984).

134

type the Advisory Committee is proposing in any of its
asymmetrical fee-shifting laws. Indeed, there is evidence that
during its consideration of some of those laws Congress weighed
the impact they would have on settlement incentives and determined
that it had struck an appropriate balance, without the types of
modifications the Advisory Committee's proposal would engraft. 32
Second, a review of the record in recent years reveals that
Congress has three times considered and rejected legislative
proposals similar to. and indeed less drastic than, these Rule 68
amendments. (See discussion in Part III.C, below, on pages 29 to
33.) It simply cannot be argued, in the face of this legislative
history, that the instant proposal is somehow consistent with
congressional purposes and enactments.

Rather, the fact that this proposal is inconsistent with
numerous federal fee-shifting statutes suggests that the changes
the Advisory Committee has drafted may exceed the scope of the
Supreme Court's rulemaking authority.

32. £££ legislative history of the Civil Rights Attorney's Fees
Awards Act ot 19/6, S. Rep. No. 94-1011, 94th Cong., 2d Sess. 5
reprinted in 1976 U.S. Code Cong. & Ad. News 5908, 5912; and B.R.
Rep. No. 94-1558, 94th Cong., 2d Sess. 7 (1976).

135

III. There Are Serious Questions as to the

Supreme Court's Authority to Promulgate
the Proposed Amendments.

The issue is whether the Supreme Court has the authority
under the Rules Enabling Act to promulgate a rules change ot the
type proposed here. Under the Act, Congress has delegated
authority to the Court "to prescribe by general rules, the forms
of process, writs, pleadings, and motions, and the practice and
procedure of the federal courts." 28 U.S.C. § 2072. However, the
Act prohibits the Court from promulgating rules that "abridge,
enlarge, or modify any substantive right." Id. Hence, the
question is whether this Rule 68 proposal is one confined to
prescribing the practice and procedure of the federal courts, or
one which abridges, enlarges, or modifies any substantive right.

Members of the Alliance submit that the proposal is one that
will modify and abridge substantive rights, in particular those
substantive rights created by Congress in enacting the federal
fee-shifting laws. Our reasoning is outlined in the following
pages. We urge the members of this Committee, and the other
members of the Judicial Conference, to afford this issue serious
consideration.

136

A. The Substance-Procedure Distinction in the

Act Allocates Decision-Making Authority Between
Congress and the Court.

The language of the Rules Enabling Act that distinguishes
between rules prescribing procedure and rules affecting
substantive rights was drafted to allocate the responsibility for
decision-making between Congress and the Court. 33 as Professor
Burbank has explained in a detailed study of the history of the
Act, the distinction was intended "to determine which federal
lawmaking body, the Court or Congress, shall decide whether there
will be federally enforceable rights regarding the matter in
question and the content of those rights. "34 while the provisions
of the Enabling Act were under consideration in Congress, members
or the House Judiciary Committee questioned Thomas Shelton, chair
of the ABA Committee on Uniform Judicial Procedure and one of the
Act's leading proponents, about the advisability of delegating
rulemaking authority to the Supreme Court, and about the scope of
the delegation. Mr. Shelton responded, "[T]he Supreme Court is
not going to hold that it has the power to legislate, and it will
confine itself to regulating the detail machinery of the

33. £££ Burbank, The Rules Enabling Act of 1934. 130 U. Pa. L.
Rev. 1015, 1113-15 (1982).

34. Id^. at 1113.

137

trial courts."35

The language that Congress subsequently adopted to define the
scope of the Court's rulemaking authority, which rests on the
substance-procedure distinction, serves several purposes. It
ensures, in light of the concerns identified by some legislators,
that the delegation will be consistent with constitutional
principles governing the delegation of rulemaking authority and
the separation of powers between the Congress and the Court. 36
For this reason, the Act must be interpreted in light of these
constitutional principles. However, as commentators have noted,
the substance-procedure distinction also was intended and serves
to establish a statutory perimeter for rulemaking that is smaller
than constitutional principles would require and that does not
depend for its precise contours upon evolving constitutional
doctrines. 37

Supre.ne Court rulings interpreting this statutory language
are limited, both in number and in the extent of their analysis.
However, as the Court emphasized in Sibbach v. Wilson & Co.

35. Reforms in Judicial Procedure; American Bar Association

Bills. Hearings Before the House Judiciary Committee. 63rd Cong.,
2d Sess. 22 (1914); see also S. Rep. No. 1174, 69th Cong., 1st
Sess. 11 (1926) ("Where a doubt exists as to the power of a court
to make a rule, the doubt will surely be resolved by construing a
statutory provision [the Rules Enabling Act] in such a way that it
will not have the effect of an attempt to delegate to the courts
what is in reality a legislative function.").

36. Id. ; see also H.R. Rep. No. 462, 63rd Cong., 2d Sess. 16
(1914); Burbank, supra note 33, at 1013-31.

37. See Burbank, supra note 33, at 1013-31.

138

snortly after the Act was passed and the first set of rules was
promulgated, the Act only delegates to the judiciary authority to
make rules not inconsistent with the statutes or constitution of
the United States. "38 Hence, in applying the substance-procedure
distinction, and thereby seeking to allocate certain
decision-making responsibility to the Court, the Advisory
Committee must ensure that the rules it recommends do not
contravene congressional enactments or constitutional principles.

B. The Rule 68 Proposal Abridges and Modifies
Substantive Rights Embodied in Federal
Fee-Shiftina Statutes.

Members of the Alliance submit that the Rule 68 proposal
impermissibly abridges and modifies substantive rights,
particularly insofar as its "sanctions" mechanism contravenes
federal fee-shifting statutes. The substantive rights that would
be abridged and modified can be conceptualized in either one of
two ways: 1) as legal rights, specific to individual litigants
and in the nature or remedial rights, to recover reasonable
attorney's fees in addition to other appropriate remedies upon
prevailing; or 2) as more general public rights to the enforcement
of the mandates of those public laws that contain fee-shifting
provisions. The legislative history of several such public laws

38. 312 U.S. 1, 9-10 (1941) .

139

with fee-shifting provisions, particularly the Civil Rights
Attorney's Fees Awards Act of 1976, indicates that members of
Congress viewed the enactments as creating legal rights in both of
these two respects, the, first in order to guarantee the second. 39

In recent decision^ on attorney's fee issues, members of the
Court have often viewed' the federal fee-shifting statutes in the
first of these two perspectives, as creating rights specific to
individual litigants. In Maine v. Thiboutot. for example, the
Court explained that "a major purpose of the Civil Rights
Attorney's Fees Awards Act was to benefit those claiming
deprivations of constitutional and civil rights.... Congress
viewed the fees authorized by § 1988 as 'an integral part of the
remedies necessary to obtain' compliance with § 1983. "4^ In
Hensley v. Eckerhart. Justice Brennan characterized attorney's fee
rights created by federal statutes as "far more like new causes of
action tied to specific rights than like background procedural
rules governing any and all litigation. "41

However, the second, broader perspective on these substantive

39. In recent comments on the Advisory Committee's 1983 proposal
to amend Rule 68, Representative Kastenmeier also opined that
"Congress conferred a substantive right by enacting the Civil
Rights Attorney Fee Award Act." 130 Cong. Rec. 4105, n.3 (daily
ed. Oct. 1, 1984) .

40. 448 U.S. 1, 9-11 (1980), quoting from S. Rep. No. 94-1011 at
5 (1976) .

41. 103 S. Ct. 1933, 1944 n. 2 (1983) (Brennan, J., concurring in
part) .

140

rights is equally important. Congress' intention was to ensure

that the public at large, and not just a small number of

plaintiffs, could rely upon the mandates of the civil rights,

environmental, and other public laws. In this respect, the

substantive rights that are threatened here are the right to live

in a society free from discrimination based on race, color, or

national origin, and the right to live in a safe and healthy

environment, inter alia. One can view these substantive rights as

contained either in the statutory language establishing the

general standards for non-discrimination and environmental

protection, or in the provisions Congress has made for the

effective enforcement of those standards. Members of Congress

thought the two sets of provisions were integrally related. They

explained, for example, in enacting the Civil Rights Attorney's

Fees Awards Act of 1976:

All of these civil rights laws depend heavily
upon private enforcement, and fee awards have
proved an essential remedy if private citizens
are to have a meaningful opportunity to
vindicate the important Congressional policies
which these laws contain.... Not to award
counsel fees ... would be tantamount to
repealing the fcivil rights! laws fthemselvesl

by frustrating their basic purpose

Without counsel fees the grant of federal
jurisdiction is but an empty gesture.4^

Members of the Court have also recognized this aspect of the

42. S. Rep. No. 1011, 94th Cong., 2d Sess. 2, 3 (1976) (citations
omitted; emphasis supplied).

141

rights granted by fee-shifting statutes. As Justice Rehnquist
observed in 1980, to award attorney's fees as a Rule 68 penalty
"could seriously undermine the purposes behind the attorney's fees
provision of the Civil Rights Act."43 In fact, the private
enforcement provisions and attorney's fee incentives in the Act
are even more critical to guaranteeing civil rights today than in
previous years because the Executive Branch has decided to sharply
reduce the federal government's enforcement role.

We do not think the changes made by the Advisory Committee
have eliminated or resolved this problem. One of these changes
affords district judges explicit discretion to determine when
sanctions (consisting largely of attorney's fees) will be imposed,
and in what amount. According to the Committee's draft, this
discretion is to be exercised when the district judge determines
that the offer has been rejected "unreasonably."

However, this discretionary feature will not work to protect
and preserve the congressionally-designed fee incentive system.
District judges' rulings on the "reasonableness" issue will be
inherently subjective and impossible to predict, particularly at
the times when the fee incentive system should be working to
encourage private enforcement — when the plaintiff is searching
for a lawyer to advise and possibly represent him or her, when the

43. Delta Air T.ines. Tnc. v. August. 450 U.S. 346, 378
(Rehnquist, J., dissenting).

142

plaintiff is deciding whether or not to file suit, and when the
plaintiff is deciding whether or not a settlement offer (under
Rule 68) sufficiently remedies the statutory violation and
compensates for the injury. 44 Additionally, from the perspective
of potential counsel, if Rule 68 is adopted, there will be far
less, if any incentive to represent plaintiffs in this type of
public law litigation if the statutory fees are likely to be
offset or outweighed by sanctions at the close of the litigation,
and particularly little incentive to continue representing a
plaintiff after a defendant has made a settlement offer just high
enough to avoid being labelled a "sham" offer. 45

C. Congress Has Recognized That Changes of
This Type Would Modify the Fee-Shifting
Statutes.

Although proponents have argued that this Rule 68 proposal
will not modify the fee-shifting statutes, it is in fact quite
similar to, and in some respects more drastic than, bills to
modify the incentives in fee-shifting statutes that Congress has
considered and rejected three times during the last four years.

44. For an example of a case which illustrates the difficulty of
predicting how a district judge will rule on the "reasonableness"
issue, see the discussion of Marek v. Chesny in Part IV. , below,
pages 37 to 39.

45. See Chesny v. Marek. 720 F.2d 474, 478-79 (7th Cir. 1983)
(Posner, J.), cert, granted. 104 S. Ct. 2149 (1984).

143

If members of Congress define measures of this type as amendments
to the fee-shifting statutes and have thus far consistently
rejected them, it is not within the province of this Committee or
the Supreme Court to promulgate similar proposals, albeit with
different labels, as Federal Rules of Civil Procedure.

The proposals that Congress has considered and rejected would
have modified the incentive scheme by requiring the court to deny
prevailing plaintiffs recovery for any attorney's fees incurred
after declining an offer of settlement, if the offer of settlement
turned out to be as favorable or "substantially favorable" as the
relief ultimately awarded by the court. Although two of these
three legislative proposals did not include the discretionary
feature that is in the Advisory Committee's draft, each of the
three proposals were considerably less drastic than the Advisory
Committee's draft insofar as they only provided for a plaintiff's
attorney to lose part of his or her statutory fee, not for the
plaintiff to have to pay part of the defendant's fee in the form
of a "sanction."

Senator Hatch first proposed these types of modifications in
the attorney's fees incentives during a series of hearings held in
1981 and 1982 to consider amendments in Section 1983 and Section

144

1988.46 After the hearings, which are described briefly below,
the 97th Congress took no further action on the proposal. In the
first session of the 98th Congress, Senator Hatch included an
identical proposal in S. 141, a bill containing both a "good
faith" defense for municipal governments sued under Section 1983
and a number of additional limitations on attorney's fee awards
under Section 1988.47 jjo hearings on the bill were held and no
other action was taken.

Then in the second session of the 98th Congress, the Reagan
Administration requested a similar fee limitation as part of an
omnibus attorney's fee bill.4** jn that bill, the Administration
proposed amending both Section 1988 and several other federal
fee-shifting statutes in this manner. Hearings were held by the
Subcommittee on the Constitution of the Senate Committee on the
Judiciary on September 11, 1984; no further action was taken.

46. 2&& Attorney's Fees Awards; Hearings on S. 585 (and on

Amendments to Be Proposed by Senator Qrrin G. Hatch) Before the
Subcommittee on the Constitution of the Senate Committee on the
Judiciary. 97th Cong., 2d Sess. 12-13 (Comm. Print 1982)
[hereinafter cited as 1982 Hearings]; see also Municipal Liability
Under 42 H.S.C. 1983: Hearings on S. 584. S. 585. and S. 990
Before the Subcommittee on the Constitution of the Committee on
the Judiciary. 97th Cong., 1st Sess. (Comm. Print 1981)
[hereinafter cited as 1981 Hearings].

47. S. 141, 98th Cong., 1st Sess., 129 Cong. Rec. S636 (daily ed.
Jan. 26, 1983) .

48. H.R. 5757, 98th Cong., 2d Sess. (1984) ("The Legal Fees
Equity Act"); S. 2802, 98th Cong., 2d Sess., 130 Cong. Rec.
S8498-8500 (daily ed. June 27, 1984).

145

As perhaps might be expected, the discussion at the
congressional hearings paralleled the discussion at last year's
Advisory Committee hearing in some respects. There was a wide
divergence of opinion on whether there was a need to increase
settlement incentives in civil rights and other types of public
law litigation. Witnesses varied considerably in their views on
whether and to what extent parties had been able to reach
settlements, and as to what factors and which parties were
responsible for the fact that some cases were not settled.
Witnesses opposing the measure pointed out that for plaintiffs and
their counsel the desire to avoid the risks of losing a case
altogether, failing to recover either damages or attorney's fees,
and facing potential liability for costs, already furnished a
substantial incentive to accept a reasonable settlement offer.49
In several cases, witnesses reported, government defense attorneys
were responsible for prolonging litigation by refusing reasonable
settlement offers.50 (Neither these government attorneys nor

49. 1981 Hearings, suslz note 46, at 614-15, 619-20; 1982
Hearings, .sjipxa note 46, at 20, 50-51.

50. Fletcher Farrington, a private practitioner from Georgia,
described a case in which a nearby county, against the advice of
its lawyers, refused a plaintiff's offer to settle for $8,000.
The case went to trial, and a jury returned a verdict of $74,000.
1982 Hearings, .suj2r_a. note 46, at 44, 48.

Stephen Ralston of the NAACP Legal Defense Fund, Inc.
described a major case against Georgia State Prison officials
which continued for seven years and took twenty weeks to try.
Finally, after the trial, because of encouragement from the judge,
incidents at the prison, and a change in defense counsel, the

(Footnote continued)

146

their clients would have any new incentives to settle under the
Advisory Committee's proposal.) Witnesses at the congressional
hearings also raised a series of practical, policy, and ethical
questions similar to those identified in this forum. 51

Since members of Congress have heard debate on several
proposals to modify the fee-shifting statutes in ways similar to,
albeit less drastic than, those advanced here, and have deemed it
inadvisable to adopt those proposals, a fortiori such
modifications should not be promulgated by the Judicial Conference
and the Court.52

50 . (continued)

State agreed to settle the case on basically the same terms that
the plaintiffs had offered before the trial. 1981 Hearings,
note 46, at 612-13.

51. See, e.g.. 1982 Hearings, sa^JLA note 46, at 17-18, 29-31, 52.

52. Those proponents of the Rule 68 proposal who rely heavily on
its procedural aspects to argue it is within the scope of the
Court's delegated rulemaking authority fail to recognize Congress'
increasing use of procedural elements in enacting substantive
public laws and policies. The fee statutes are a good example of
this legislative trend, so are the environmental protection laws.
See, e.g. . National Environmental Policy Act of 1969, 42 U.S.C.

S 4332 (requiring the preparation of environmental impact
statements on all major federal actions significantly affecting
the quality of the human environment).

If the purpose of the substance-procedure dichotomy is in
part to protect Congress' policy-making domain, and if Congress is
increasingly designing substantive public laws with procedural
components, members of the Advisory Committee will not be able to
rely on a mechanical invocation of Hanna v. Plumer's "rationally
capable of classification as procedural" language (380 U.S. 460,
472 (1965)) to ascertain whether their proposals are within the
scope of the Court's authority.

147

D. The Court's Ruling in Alyeska Confirms
That This Policy Decision Should Be
Made By Congress.

The conclusion that this is a substantive policy change of a
type appropriate for Congressional consideration is further
confirmed by the Supreme Court's 1975 ruling in Alyeska Pipeline
Service Co. v. Wilderness Society.53 In Alyeska. the Court
reviewed the American common law rule that each litigant pay his
or her own attorney's fees and determined that it would be
inappropriate for the judiciary to make "drastic new rules with
respect to the allowance of attorneys' fees. "54 The reallocation
of attorney's fees between parties in litigation, the Court held,
is a "policy matter that Congress has reserved for itself."55 The
Court's reasoning is based on jurisprudential considerations, and
is consistent with constitutional separation of powers principles
and Rules Enabling Act constraints.

Although this year's version of the proposal has been
tempered with provisions for the exercise of district court
discretion and re-captioned a "sanctions" proposal, these
revisions do not significantly alter its character or likely
impact. It remains essentially a fee allocation rule, and one

53. 421 U.S. 240 (1975) .

54. Id^. at 269.

55. liL.

148

which authorizes district judges to redistribute fee liability in
a manner and to an extent that may reduce, offset, or even
outweigh congressionally authorized incentives for plaintiffs to
bring private suits enforcing public laws. The fact that some
district judges will refrain from doing so, or will do so only
occasionally, makes the rule no less inconsistent with
congressional enactments. In fact, it may lead to the type of
non-uniform and relatively standardless judicial decision-making
that the Court intended to prohibit in Alyeska.

Nor can it be argued persuasively that re-labelling this fee
allocation proposal a proposal for "sanctions" and predicating it
upon a finding of "unreasonableness" makes it analogous to the
sanctions provisions contained in Rules 11, 26, 30, 37 and 56, 56
and thus avoids Alyeska' s proscription. It is not the title or
the label attached to the rule which is determinative in this
analysis, but rather its contents. The contents of the proposed
rule, as noted above, provide for reallocating fee liability
between the parties in a manner quite different from either the
American rule or the legislative modifications that Congress has
developed. Moreover, the "sanctions" proposed in this Rule 68
context, unlike the sanctions contained in Rules 11, 26, 30, 37,
and 56, are not imposed on the basis of actions which obstruct,

56. See Draft Advisory Committee Note, reprinted in 590 F. Supp.
at CL (1984) .

149

delay, or mislead during the course of the litigative process.
Rather, these Rule 68 sanctions would be imposed when a party has
continued his or her use of the litigative process in good faith,
rather than opting to settle. Additionally, the new Rule 68
sanctions would be much larger in amount, and imposed upon a lower
threshold of "culpability" (i.e. a party's "unreasonableness"),
than the sanctions presently contained in the other rules.

Hence, members of the Alliance for Justice submit that the
promulgation of these proposed amendments to Rule 68 would exceed
the rulemaking authority of the Supreme Court.57 For this reason,
because the need for the amendments has not been demonstrated, and
also because the amendments will adversely impact access to the
federal courts, engender a large volume of collateral litigation
on "fee sanction" issues, and greatly increase the potential for
conflict and other problems in the attorney-client relationship,

57. It is not necessary to reach the question of whether the
promulgation of these Rule 68 amendments would exceed not only the
statutory authority delegated to the Court under the Rules
Enabling Act but also the constitutional limits on the Court's
rulemaking authority.

There are, however, serious constitutional questions which
would inhere in the promulgation of a rule that amends or repeals
an act of Congress, particularly in light of the Court's recent
delineation of the character of legislative action and the
restrictions on how such action may be taken and by whom. I.N. S.
v. Chadha. 103 S. Ct. 2764 (1983) . If members of Congress cannot
take legislative action by the vote of only one House and without
presentment for Presidential signing, then it would seem to follow
a fortiori that the Judicial Conference and the Court can't take
legislative action absent a vote by either House or presentment to
the President.

150

the proposal should be withdrawn.

IV. The Proposed Amendments Will Have an

Adverse Impact on Access to the Courts.

This year's proposal to amend Rule 68 will, like last year's,
decrease access to the courts for less affluent litigants,
including individuals and small businesses and organizations.
Although the proposal has been rewritten to include a
"reasonableness" standard and to explicitly allow a district court
to consider the burden on a litigant in determining the amount of
a sanction, many litigants of limited means will be reluctant to
risk potential liability for a sanction calculated on the basis of
a defendant's fees and costs. They will have no way of
predicting, at the time when they file the suit or weigh the first
settlement offer, whether the district judge will find their
actions reasonable, or whether the judge will determine that a
sanction might pose a burden for them.

The facts of the Marek v. Chesny case,58 now pending in the
Supreme Court, provide an excellent empirical example of why the
"reasonableness" standard will fail to afford plaintiffs any
meaningful protection. Chesny is a civil rights and wrongful
death action brought by the father of a young man killed by police
gunfire. Approximately six months before trial, the three

58. No. 83-1437 (U.S. argued Dec. 5, 1984).

151

officers involved made a Rule 68 offer to settle the case for
$100,000 inclusive of attorney's fees and costs (which at that
point totalled approximately $32, 000). 59 Mr. Chesny and his
attorney thought the offer was unreasonably low, and rejected it.
A few days later, unaware of the Rule 68 offer or its rejection,
the district judge talked with the parties about settlement during
a pretrial conference. He opined that a $100,000 figure mentioned
by the defendants* counsel was unreasonably low, and a $500,000
figure mentioned by plaintiff's counsel was unreasonably high, and
mentioned amounts in the $250,000 to $400,000 range for the
parties' consideration.60 The parties could not agree, and the
case went to trial several months later. The jury came back with
a verdict of $60,000 (inclusive of $1,000 in punitive damages
against each officer).61 In opposing the defendants' motion for
attorney's fee sanctions for his client's failure to settle,62
plaintiff's counsel reminded the district judge that at a pretrial

59. Chesny v. Marek. 547 F. Supp. 542, 545 (N.D. 111. 1982); Jt.
App. at A-3 to 9, A-16 to 17, Marek v. Chesny. No. 83-1437 (U.S.).

60. Record, Document No. 157 (Plaintiff's Reply to Defendant's
Memorandum in Opposition to Plaintiff's Post-Trial Motions and in
Support of Defendant's Post-Trial Motion) at 1-3, and Ex. A
thereto, Marek v. Chesny. No. 83-1437 (U.S.).

61. Petitioners' Brief at 4, Marek v. Chesny.

62. This motion was based on an argument by the defendants that
the existing language in Rule 68 could be construed, together with
the existing language in 42 U.S.C. § 1988, as providing attorney's
fee sanctions for declining to settle. See Chesny, 547 F. Supp.
at 545-48.

152

conference he had shared in the assessment that $100,000 was
unreasonably low.63 The district judge rejected the reminder, and
termed the offer "a good faith attempt to settle the action and
not simply a sham designed to invoke Rule 68. "64

The facts in Chesny highlight both the subjectivity of the
"reasonableness" determination, and the possibility that a
district judge will view a settlement offer with hindsight very
differently than he or she might have viewed it contemporaneously
(and very differently than the parties might have viewed it
contemporaneously). Litigants who don't want to risk liability
for sanctions will be well-advised to settle when the first offer
that is not clearly a "sham" offer is made, or alternatively, not
to file suit.

Additionally, because the rule will be highly subjective in
its application, plaintiffs whose claims are regarded as novel,
less worthy, or unimportant by some district court judges will be
more likely to incur sanctions, and m^re likely to incur them in
larger amounts. Plaintiffs who seek to litigate claims against
the government may face this type of problem, and also an
additional inequality introduced by the fact that although
governmental defendants may seek sanctions against plaintiffs for

63. See Record, Document No. 157 and Ex. A thereto, supra note
60.

64. Chesny. 547 F. Supp. at 546.

153

refusing to settle, some defendants will take the position that
under doctrines of sovereign immunity governmental defendants do
not have to pay monetary sanctions unless liability is imposed by
statute (not court rule) .65

For all of these reasons, and because the proposal will
reduce or eradicate incentives for plaintiffs to sue under those
laws that include asymmetrical fee-shifting provisions (see Part
II, above), one long range effect of the proposal's adoption will
be to discourage persons with meritorious federal statutory and
constitutional claims from vindicating their rights, and to
discourage attorneys from representing them.

V. The Proposed Amendments Will Engender a
Large Volume of Collateral Litigation.

It is possible, on the one hand, that if the proposal is
adopted, there will be an increase in the number of cases that
settle and a decrease in the number of cases that go to trial. If
this occurs, the federal courts will less frequently articulate
and enforce legal norms in our society. Members of the Alliance
would submit, as some commentators have pointed out, 66 that the
Chief Justice and the Judicial Conference should not be seeking to
increase the number of "case settlements" achieved at the cost of

65. See Justice Department Comments, supra note 21, at 3-5,

66. £££ Fiss, Against Settlement. 93 Yale L.J. 1073 (1984),

154

diminishing the courts1 historic, constitutional role.

On the other hand, it is also possible that if the proposal
is adopted, a significant number of litigants will continue to
reject settlement offers and to seek adjudications of their cases
on the merits. If this occurs, then considerable litigation on
collateral fee and sanctions issue will ensue. The incentive to
litigate these issues, for those litigants who do not settle, will
be substantial, because the amount of the sanction to be assessed
may well be sizeable. Moreover, the six factors listed in the
draft amendments for determining the reasonableness of a party's
decision to reject a settlement offer are all highly subjective
(e.g. . "the closeness of the questions of law and fact at issue,"
"whether the offeror had unreasonably refused to furnish
information necessary to evaluate the reasonableness of the
offer," and "whether the suit was in the nature of a
'test-case'..."). When these six factors are read in combination,
they suggest a scope of relevant proof and discovery on the Rule
68 "sanctions" issue broader than discovery and proof on the
merits of the case itself.

In addition, numerous procedural questions will arise in the
course of Rule 68 "sanctions" litigation: For example, what
discovery should be allowed prior to the hearing on sanctions?
Can a party seek to obtain or disclose privileged attorney-client
communications or attorney work product material in support of or
in opposition to a sanctions motion? Should the answer depend, in

155

whole or in part, on whether an appeal or related case is still
pending? Should the question, when it arises, of whether an
attorney is liable for all or part of a sanctions award be
resolved in the same hearing, or in another collateral proceeding?
If the question is to be resolved in the same proceeding, how can
that attorney represent his or her client without possible
conflict during the sanctions proceeding?

As noted in the introduction to this testimony, the Alliance
for Justice will discuss a number of these issues (including those
outlined in Part VI, below) , which have a particularly critical
impact on the attorney-client relationship, in written comments to
be filed following the hearing. Suffice it to note here, however,
that the adoption of the Rule 68 proposal might well result in
both a decrease in judicial resources devoted to interpreting the
Constitution and federal laws, and an increase in judicial
resources devoted to adjudicating collateral fee and sanctions
issues. It is difficult to understand how citizens, judges, legal
scholars, members of the legal profession, or legislators would be
willing to countenance such a development, let alone support a
proposal that would invite it.

VI. The Proposed Amendments Will Significantly
Increase the Potential for Conflict and
Other Problems in the Attorney-Client
Relationship.

As noted above, in written comments to be submitted after the

156

hearing, the Alliance for Justice will analyze the ways in which
the Rule 68 proposal, if adopted, will increase the potential for
conflict and other problems in the attorney-client relationship.
At least three primary areas of impact on the attorney-client
relationship merit the Advisory Committee's consideration.

First, although neither the text of the proposed amendments
nor the Advisory Committee Note addresses this point, it seems
likely that parties litigating the reasonableness of an offer's
rejection (in order to recover a monetary sanction) will seek to
obtain and disclose information relevant to the reasonableness
issue that is contained in privileged attorney-client
communications and confidential work product material.
Disclosures of this type may be numerous, and particularly
problematic if an appeal or related case is still pending while
the reasonableness issue is being adjudicated.

Second, the draft Committee Note accompanying the 1984
proposal permits either party to demand simultaneous negotiation
of the merits and the fee award in litigation covered by
fee-shifting statutes. 67 This aspect of the proposal is likely to
be particularly problematic for plaintiffs' counsel, and
particularly controversial in those jurisdictions that have
recognized simultaneous negotiation as raising severe ethical

67. Draft Committee Note, paragraph 5, reprinted in 590 F. Supp.
at CXLVIII (1984) .

157

difficulties.68

Third, as noted above in Part V, in cases in which a monetary
sanction for the refusal to settle is assessed, there is likely to
be substantial conflict, and possibly collateral litigation,
between the sanctioned party and his or her lawyer as to who
should be liable for the sanction. Although the decision as to
whether or not to accept a settlement offer is one for the client
to make (see Rule 1.2(a), A.B.A. Model Rules of Professional
Conduct) , many clients rely heavily upon the recommendations of
their attorneys. When the sanction at issue is several thousand
or several hundred thousand dollars, the client and attorney
involved may seek a judicial resolution of any dispute as to who
is liable and for what portion of the sanction award. This will
engender numerous substantive, procedural, and ethical problems.

The overall impact of these problems may be, in part, to
discourage attorneys from representing clients in suits to
vindicate constitutional and federal statutory rights, at least in
the federal courts. Moreover, to the extent that federal rules
are often used as a model in state court rulemaking, these
problems will be replicated in state forums.

68. .£££, e.g.. Mendoza v. United States. 623 F.2d 1338, 1352-53
(9th Cir. 1980), cert, denied sub nom. Sanchez v. Tucson Unified
School District. 450 U.S. 912 (1981); Prandini v. National Tea
Co.. 557 F.2d 1015, 1021 (3rd Cir. 1977); see also Opinion No.
80-94 of the Committee on Professional and Judicial Ethics of the
Association of the Bar of the City of New York, 36 Record of the
N.Y.C.B.A. 507 (1981) .

48-930 O— 85 6

158

Conclusion

For all of the foregoing reasons, the Alliance for Justice
submits that the Advisory Committee should withdraw its proposal
to amend Rule 68.

159

The Depuiy Attorney General Washington. DC. 20530

April 5, 1985

Honorable Edward T. Gignoux
Chairman, Committee on Rules of

Practice and Procedure
Administrative Office of the

United States Courts
Washington, D.C. 20544

Dear Judge Gignoux:

The Attorney General has asked me to respond on behalf
of the Department of Justice to the Committee's invitation for
comments concerning the proposed amendments to the Federal Rules
of Civil Procedure. We have comments on the proposed amendments
to Rule 4(d)(4), Rules 4(i), 28 and 44, Rule 68, and Admiralty
Rules C and E.

I. RULE 4(d)(4) (SERVICE ON U.S. ATTORNEYS)

Proposed Rule 4 would allow service of process upon
United States Attorneys by registered mail rather than the
present requirement of personal service. The Department
generally supports this proposal. However, we are concerned
about its application to the larger U.S. Attorney offices where,
in the absence of language providing that such registered service
is to be made to the attention of a designated person or
position, such process could subject the United States to entry
of default judgments because the process was misdirected by their
mailrooms. We therefore request that the proposed amendment
contain the following language:

". . .by sending a copy of the summons and of the complaint
by registered or certified mail addressed to the Civil
Process Clerk of the United States Attorney's office."

In addition, because of the particular time pressures
in cases where preliminary relief is sought, we urge that the
Committee Note make it clear that (1) the change does not absolve
a plaintiff seeking preliminary relief from his duty to give the
defendant prompt notice of the application and (2) service by
mail is not to be used as a device to shorten a defendant's time
to prepare for a hearing on an application for preliminary
relief.

160

II . RULES 4(i), 28 and 44 (TRANS-NATIONAL LITIGATION)

We generally support the proposed amendments to Rules
4(i), 28 and 44, but we would suggest some clarifying and techni-
cal amendments. The proposed amendments are intended "to clarify
the availability to litigants in trans-natior.al litigation of
simplified and useful procedures provided by conventions and
treaties to which the United States is a party." We believe,
however, that as written the proposed amendment to Rule 4(i)
would not clarify the situation.

Rule 4(i) currently describes the appropriate means of
service on persons in a foreign country in those situations where
Rule 4(e) authorizes extraterritorial service. The proposed
amendment would add to the methods of service presently
described, service "pursuant to any applicable treaty or
convention." The only such treaty or convention to which the
United States is a party is the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents. The Convention
provides, however, that the Convention "shall apply in all cases,
in civil or commercial matters, where there is occasion to
transmit a judicial or extra judicial document for service
abroad." (Article 1, emphasis added.)

Confusion may be created by the proposed Pule 4(i)
amendment unless it or the Committee Note make clear its rela-
tionship with the Hague Convention. Since the Convention
provides for exclusive use of its procedures as between state
parties, we suggest that the amendment be modified to indicate
that in the event of conflict the Convention controls among
states that are parties to it. An alternative to changes in the
Rule itself would be a more detailed discussion in the Committee
Note of the relationship between the Convention and the Rule. 1/

We also suggest some technical amendments. Proposed
Rule 4(i) (1) (B) employs the term "letter of request" to cover
procedures under applicable treaties. While this term is used in
the Hague Evidence Convention, it is not employed in the Hague
Service Convention, which uses "requests for service" (Art. 2)
and "request conforming to the model annexed to the present
convention" (Art. 3). We therefore suggest that Rule 4(i)(l)(B)
be amended to read:

as directed by the foreign authority in response to a letter
rogatory, a letter of request or a request under any appli-
cable treaty or convention.

1/ The conventions that apply to Rules 28 and 44 do not provide

for exclusive use of their procedures, unlike the convention

relating to service of process, and therefore the proposed

amendments to Rules 28 and 44 are not subject to the same
problem.

161

Similarly, we concur with the proposed amendment to Rule 28(b)
that adds procedures provided in applicable treaties. However,
in order to differentiate between letters rogatory and letters of
request under the Hague Evidence Convention, we suggest that Rule
20(b) be amended to read:

...or (3) pursuant to a letter rogatory or (4) pursuant to a
letter of request under any applicable treaty or convention.

III. RULE 6 8 (OFFER OF SETTLEMENT)

The proposed amendments to Rule 68 would replace the
current offer of judgment procedure with an "offer of settlement"
procedure. A party would be given 60 days within which to accept
a formal Rule 68 offer. If the offer is not accepted, the
offeror could make a motion, within 10 days after entry of
judgment, seeking the imposition of sanctions on the offeree on
the ground that the offer was rejected unreasonably. In deter-
mining the issue of reasonableness, the court would be required
to consider all relevant circumstances at the time of the re-
jection, including several that would be spelled out in the rule.
Regarding the amount of the sanction to be imposed, the court
would consider the extent of the resultant delay, the attorneys'
fees and other expenses incurred by reason of the failure to
accept the offer, the amount of interest lost by the offeror, and
the burden on the offeree. Unlike current Rule 68, the amended
Rule 68 procedure would be available to both plaintiffs and
defendants .

The Justice Department opposes the Rule 68 proposal
because a rule change of this nature and magnitude should be made
by Congress and, on the merits, because the change would result
in more costs to the litigation system than benefits. In any
event, the rule change cannot be made applicable to the United
States because it has not waived its sovereign immunity.

A. Proposed Rule 68 Should Not Be Adopted Through Judicial
Conference Rulemaking: Such Fundamental Changes In The
Allocation of Litigation Costs Should Be Made Only By
Congress .

The Department does not believe that Judicial
Conference rulemaking is the appropriate process for developing a
"procedural" rule that would have the substantive effect of
drastically reallocating the costs of litigation in the federal
courts. As the Supreme Court concluded when it declined to
create a "private attorney general" exception to the "American
Rule" on attorneys' fees, Alyeska Pipeline Service Co. v. Wilder-
ness Society, 421 U.S. 240 (1975), Congress is the appropriate
forum for making such fundamental policy determinations as where
litigation burdens should fall:

We are asked to fashion a far-reaching exception to this
"American Rule"; but having considered its origin and
development, we are convinced that it would be inappropriate

162

for the Judiciary, without legislative guidance, to reallo-
cate the burdens of litigation in the manner and to the
extent urged by respondents and approved by the Court of

Appeals.

* * * *

(I]t is not for us to invade the legislature's province by
redistributing litigation costs in the manner suggested by
respondents and followed by the Court of Appeals.

421 U.S. at 247, 271.

Congress has deeply and repeatedly involved itself in
the policy area that the Judicial Conference now considers
"invading". By providing for attorneys' fee awards in various
fee-shifting statutes, Congress has created policies on the
allocation of the costs of litigation and on the burdens and
societal benefits of private enforcement. Proposed Rule 68 would
conflict with these policies, specifically with the fee-shifting
laws, such as the Clayton Act and the civil rights laws, that
entitle the prevailing plaintiff to reasonable attorneys' fees
but withhold such relief from the prevailing defendant. In cases
arising under these laws, the proposed rule would operate
asymmetrically by providing the defendant with the opportunity to
obtain attorneys' fees but extending no corresponding benefit to
the plaintiff, who by statute is already entitled to attorneys'
fees if he prevails in the lawsuit.

Since Congress has in effect pre-empted this policy
area, we recommend that if the Judicial Conference wishes to
proceed with this Rule 68 proposal or another proposal similar 'in
substance, it should not submit the proposal to the Supreme
Court, but rather arrange for its introduction in Congress.

B. The Costs Of Proposed Rule 68 Would Outweigh Its Benefits.

The Department fully shares the Advisory Committee's
concern about the proliferation of costly and lengthy civil
litigation. Frivolous lawsuits are brought all too frequently,
burdening the courts and imposing unjustified litigation
expenses. Various groups across the country have been wrestling
with the problem of devising fair and effective alternative ways
of resolving disputes more swiftly and at less cost to the
parties than is possible under our present system. The
Department strongly believes that the process of exploring such
alternatives is of crucial importance to our judicial system.

We also recognize that Rule 68 in its present form has
not been widely used to encourage settlements. It applies to
settlement offers made by defendants but not by plaintiffs. The
only sanction is the award of court costs, which generally do no-
include defendants' attorneys' fees and frequently are too small
to be a significant factor in motivating settlements. And even
that limited sanction becomes unavailable to the defendant if th
plaintiff, after failing to accept a Rule 68 offer, loses the
case entirely. Delta Air Lines, Inc. v. August, 450 U.S. 346

163

(1981) (Rule 68 sanction can be invoked only when plaintiff
prevails as to some part of claim, but recovers less than amount
or value of defendant's settlement offer).

Nonetheless, the Department must oppose the Rule 68
proposal on its merits because we believe that it would result in
more costs than benefits for the litigation system. The
witnesses at the recent public hearings on these Federal Rules
proposals, as well as other public commenters, have fully
discussed the proposal's objectionable aspects. Accordingly, we
will not discuss them in any detail here, but will only briefly
summarize them:

Increased post-trial "satellite" litigation on
sanctions. The admirable purpose of the proposal is to reduce
litigation by encouraging earlier settlements. We believe,
however, that the rule change would be counter-productive. While
there may be a moderate increase in settlements, that increase
might well be offset, or even overshadowed, by greatly increased
post-trial litigation on sanctions. The litigation system has
seen a recent proliferation of "satellite" proceedings on attor-
neys' fees, and this proposed change would only accelerate that
trend and increase the congestion in the courts.

° Granting excessive discretion to judges to award
sanctions. Under existing fee-shifting statutes, cases awarding
attorneys' fees are frequently marked by confusion over the
proper bases for fee awards and waste of judicial resources in
determining the proper award. Although proposed Rule 68 would
appear to provide more guidelines than some of the statutes,
these guidelines are only "factors to be considered" and may thus
in fact be illusory, as the court in its discretion decides the
issue of unreasonableness. The problems characterizing
attorneys' fee litigation may therefore also plague Rule 68
proceedings, thus frustrating its purpose of reducing
litigation. 2/

Injury to attorney-client relations. Post-trial
hearings on the reasonableness of a settlement offer rejection
would necessarily involve consideration of counsel's advice on
the reasonableness of the offer and review of other attorney-

2/ The result might well be, as Justice Brennan said in the
context of attorneys' fee litigation, "a vast body of
artificial, judge-made doctrine, with its own arcane
procedures, which like a Frankenstein's monster meanders its
well-intentioned way through the legal landscape leaving
waste and confusion (not to mention circuit-splits) in its
wake." Hensley v. Eckerhart, 103 S. Ct. 1933, 1951 (1983)
(Brennan, J., concurring in part and dissenting in part).

164

client communications during the settlement process. This would
repeatedly place the attorney-client privilege at issue and, to
the extent the privilege is waived, the attorney-client relation-
ship would be weakened. Conflict and possible litigation over
liability for the sanction are also likely between a sanctioned
offeree and his or her attorney.

Interference with relations between opposing counsel
and disruption of the settlement process generally. At best, the
proposed rule would likely make the settlement process unneces-
sarily formal, as opposing counsel would attempt to "make their
record" during settlement talks in anticipation of post-trial
sanctions hearings. At worst, settlement talks would be reduced
to gamesmanship, weakening the trust and goodwill between
opposing counsel that so often leads to settlement. In any
event, as with the attorney-client privilege, the confidentiality
of settlement talks would be sorely tested. In short, Rule 68
offers might well create an atmosphere of distrust that would
make settlements more difficult.

° Weakening of the settlement role of the judge. Judges
often play a useful mediation role during settlement talks. It
appears likely that judges would reduce this role under the
proposed rule in anticipation that they might have to conduct a
post-trial proceeding on the settlement talks.

° Interference with fee-shifting statutes. As discussed
in Point A above, proposed Rule 68 would conflict with fee-
shifting statutes favoring plaintiffs because the sanctions
authorized by the rule would be equally available against
plaintiffs and defendants.

In addition to these specific objections to the Rule 68
proposal, we also observe that recent amendments to other Federal
Rules are now available to help promote settlements. For
example, Rule 16 has been amended to list settlement as a subject
to be discussed at pre-trial conferences. The early involvement
of the court in supervising and prompting the discovery process,
by such steps as issuing scheduling orders, should also increase
the possibilities for settlement because adequate discovery
generally is necessary before settlement options can be
evaluated. The Rule 16 innovations are designed to produce an
environment where profitable settlement negotiations will
flourish, in contrast to the threats to the settlement process
presented by proposed Rule 68.

Finally, we note that existing Rule 68 has some
benefits that would be lost under the proposed rule. The current
rule's "bright line" approach of requiring an offeree to pay
costs if he recovers less than an offer he rejected has the
advantages of definiteness in the circumstances in which it
applies and relative ease in calculating the amount of costs.
The Justice Department has used Rule 68 effectively in some of
our litigation to encourage plaintiffs to settle and to have
costs imposed on those who unreasonably refuse to settle. We

165

would oppose the deletion of the current requirement that the
offeree "pay the costs" of the litigation if he rejects a
settlement but does no better at trial.

We also favor existing Rule 68 because it serves as a
basis for appropriately limiting attorneys' fee awards under
fee-shifting statutes. We believe that plaintiffs who
unreasonably reject settlement offers should thereafter bear the
costs of the action, including their own attorneys' fees.
Accordingly, they should not be entitled under a fee-shifting
statute to recover attorneys' fees incurred after such a
rejection. The Supreme Court is presently considering, in Karek
v. Chesny (No. 83-1437), the argument that, because 42 U.S.C.
§ 1988 includes attorneys' fees as part of costs and because Rule
68 currently provides that an offeree who recovers less than a
settlement offer he rejected must "pay the costs incurred after
the making of the offer," a plaintiff who rejects an offer and
recovers less at trial is not entitled to an attorneys' fee
award. Because the proposed amendment to Rule 6 8 makes no
reference to "costs" in this context, it might inadvertently
undermine this limitation on attorneys' fee awards.

In conclusion, we share the desire of the Advisory
Committee to make Rule 68 more effective. By no means do we
intend to suggest by our comments on this proposal that we would
oppose all future proposals on Rule 68. We simply must oppose
this particular proposal because we believe that its costs
clearly would outweigh its benefits.

C. The Rule Cannot And Should Not Apply To The United States.'

1. The United States Has Not

Waived Its Sovereign Immunity.

Absent a congressional waiver of immunity, sovereign
immunity bars any order or judgment against the United States or
its agencies if the order requires the payment of funds from the
public treasury. Thus, proposed Rule 68 cannot apply to the
United States because the United States cannot be made liable for
monetary sanctions in the absence of a statute waiving sovereign
immunity. Accordingly, if proposed Rule 68 is adopted, we
recommend that to prevent confusion the rule expressly exempt the
United States.

The Rules Enabling Act, 28 U.S.C. 2072, makes it clear
that rules promulgated by the Supreme Court "shall not abridge,
enlarge or modify any substantive right." See Sibbach v. Wilson,
312 U.S. 1, 7-8 (1941). In particular, the authority given the
Court by that Act "to make rules of procedure for the exercise of
its jurisdiction is not an authority to enlarge that jurisdic-
tion." United States v. Sherwood, 312 U.S. 584, 589-91 (1941);
see also Sibbach v. Wilson, supra, 312 U.S. at 10 (court rules
may not "extend or restrict the jurisdiction conferred by a
statute"). It is well established that sovereign immunity is
jurisdictional (see, e.g., Soriano v. United States, 352 U.S.

166

Z/U, 2/6 (1957)) and that "the terms of (the sovereign's] consent
to be sued in any court define that court's jurisdiction to
entertain the suit." United States v. Sherwood, supra, 312 U.S.
at 586. And a court may not impose a monetary penalty upon the
United States under the Federal Rules in the absence of an
explicit waiver of sovereign immunity. See Land v. Dollar, 33G
U.S. 731, 738 (1947) (absent a 1 Ablative waiver of sovereign
immunity, a court has "i power 10 make an award which would
"expend itself on the publ; - treasury or domain"); see also
United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365
(9th Cir. 1980) . Therefore, a Federal Rule cannot by itself
empower a court to impose a monetary remedy against the
government .

Waivers of sovereign immunity must be strictly
construed in favor of the United States:

Except to the extent it has waived its inmunity, the Govern-
ment is immune from claims for attorney's fees [citation
omitted] . Waivers of immunity must be "construed strictly
in favor uf the sovereign," [citation omitted] and not
"enlarge [d] . . . beyond what the language requires"
[citation omitted] . In determining what sorts of fee awards
are "appropriate," care must be taken not to "enlarge" [the
particular statute's] waiver of immunity beyond what a fair
reading of the language of the section requires.

Ruckelshaus v. Sierra Club, 103 S. Ct. 3274, 3277 (1S83).
Moreover, waivers "cannot be implied but must be unequivocally
expressed." United States v. King, 395 U.S. 1, 4 (1969).

We are confident that no existing statutory waiver of
the United States' sovereign immunity would extend to proposed
Rule 68. The Equal Access to Justice Act, the broadest fee-
shifting statute applicable to the United States, makes the
United States liable for the reasonable fees and expenses of
attorneys only "to the same extent that any other party would be
liable under the common law or under the terms of any statute
which specifically provides for such an award." 28 U.S.C.
2412(b) (emphasis added). However, since a procedural rule
promulgated by the Supreme Court is not a statute, 3/ section
2412(b) 's waiver of sovereign immunity' would not authorize the
award of attorneys' fees, expenses or other sanctions against the
United States under Rule 68. That specific and limited waiver
simply cannot, under the Ruckelshaus strict construction rule, be
construed to extend to what would be a judicially-created rule
expanding drastically the exposure of the United States to
attorneys' fee awards and other sanctions.

3/ Founding Church of Scientology v. Bell, 603 F.2d 945, 952

(D.C. Cir. 1979); Walko Corp. v. Burger Chef Systems, Inc.,
554 F.2d 1165, 1168 n.29 (D.C. Cir. 1977).

167

2. Rule 68 Sanctions Would Be Inappropriate

In Many Cases Involving The United States.

There are many types of cases in which it would be
inappropriate to impose Rule 68 sanctions against the United
States. In many lawsuits that involve issues of public policy,
the Government's actions should not be constrained by the threat
of Rule 68 sanctions.

The possibility that Rule 68 could be applied in suits
for equitable relief could seriously interfere with the Govern-
ment's ability to carry out its law enforcement responsibilities
to the public. Defendants in injunctive suits brought by the
United States often offer limited relief as a settlement. The
Government should not be forced to accept the threat of liability
for the offeror's legal fees, or other sanctions, as the price of
pursuing relief it considers essential to protect the public
interest -- and offerors should not be afforded such a weapon to
wield.

Much government litigation cannot be quantified.
Settlement of such actions is difficult because government policy
affecting the public and non-parties is at issue. The non-
monetary nature of the subject matter would make it difficult to
compare a settlement offer with a final judgment to determine the
reasonableness of the offer or of the rejection. And govern-
mental privilege and confidentiality could hamstring our defense
of the reasonableness of any rejection of a settlement offer.

IV. ADMIRALTY RULES C AND E

The proposed amendments to Admiralty Rules C and E
would allow only a U.S. Marshal to arrest a vessel but allow a
special appointee to arrest other property in an admiralty-
proceeding. A modification proposed by the Maritime Law Asso-
ciation (MLA) would expand the Marshal's exclusive arrest powers
to include the vessel and any "property" on board.

The Department endorses the proposed amendment and the
MLA modification. However, to avoid any confusion, we suggest
that the Committee Note state that the, word "property" includes
cargo, bunkers and other equipment. The last sentence of the
Note could read:

However, since successful arrest of a vessel or property on
board a vessel, which includes cargo, bunkers, and other
equipment , frequently requires the enforcement presence of
an armed Government official and the cooperation of the
United States Coast Guard and other governmental
authorities, the provision that the arrest of a vessel or
property on board the vessel must be by a Marshal is
continued. (Changes underlined.)

168

V. CONCLUSION

In summary, the Department of Justice supports the
proposed amendments to Rule 4(d)(4), Rules 4(i), 28 and 44 and
Admiralty Rules C and E, but opposes the Rule 68 proposal.

We very much appreciate the opportunity to comment on
these important proposals and would be pleased to submit any
additional or clarifying comments that the Committee might
request.

Sincerely,

j^wv^j)^ —

D. Lowell Jensen

Acting Deputy Attorney General

169

I'.S. Departm. of Justice

Office of the Deputy Attorney General

Tt. lhT»u:» Ano:nc> Genera) Wcihinfion. D C .""O.'.'C'

February 28, 1984

Honorable Edward T. Gignoux
Chairrr.an, Committee on Rules of

Practice and Procedure
Administrative Office of the

United States Courts^,
- Washington, D.C. 20544*

Dear Judge Gignoux:

The Attorney General has asked me to respond on behalf
of the Department of Justice to the Committee's invitation for
comments concerning the proposed amendments to the Federal Pules
. of Civil Procedure. As the most frequent litigant before the
federal courts, the Department has a keen interest in the Federal
Rules and their amendment. We comment below on the proposed
amendments to Rules 68, 71A, 83 and Admiralty Rules h, C and E.
Because we are most concerned about the Rule 68 proposal, we
address it first.

I. RULE 6 8 (OFFER OF SETTLEMENT)

The proposed amendments to Rule 6£ would make its
existing offer of judgment procedure available to plaintiffs, as
well as defendants; allow the offeree 30 days, instead of 10
days, to consider whether to accept; and provide that if the
judgment finally entered is not more favorable to the offeree
than the unaccepted offer, the offeree must pay the offeror's
costs, expenses and reasonable attorneys' fees incurred after the
making of the offer, plus interest on the amount of the offer to
the extent such interest is not included in the judgment. The
amendments would rename the procedure the "offer of 'settlement"
procedure .

The amended Rule 68 would also provide that costs and
expenses otherwise due under the Rule could be reduced by the
court if found to be excessive or unjustified under all of the
circumstances and should not be awarded at all if the offer was
made in bad faith. In determining whether a final judement is
more or less favorable to the offeree than the offer, the ccsts
and expenses of the parties are to be excluded from consider-
ation .

170

A. Proposed Rule 68 Should Not Be Adopted Through Judicial

Conference Rulemaking: Fundamental Changes In The "American
Rule" Should Be Made Only By Congress.

The Department of Justice opposes this Rule 68 proposal
because it does not believe that Judicial Conference rulemaking
is the appropriate process for developing a "procedural" rule
that would have the substantive effect of drastically reallocat-
ing the costs of litigation in the federal courts. Proposed Rule
68 represents nothing less than a substantial evisceration o'f the
"American Rule" that a prevailing litigant generally may not
collect attorneys' fees from the losing party. As the Sup.r.er.e
Court concluded when it declined to create a "private attorney
general" exception to the American Rule, Alveska Pipeline Service
Co. v. Wilderness Society, 421 U.S. 240 (1975), Congress is
the appropriate forum for making such fundamental policy determi-
nations as where litigation burdens should fall. We quote
several passages from the Supreme Court's decision:

We are asked to fashion a far-reaching exception to
this "American Rule"; but having considered its origin
and development, we are convinced that it would be
inappropriate for the Judiciary, without legislative
guidance, to reallocate the burdens of litigation in
the manner and to the extent urged by respondents and
approved by the Court of Appeals.

. . . [I]t is apparent that the circumstances under
which attorneys' fees are to be awarded and the range
of discretion of the courts in making these awards are
matters for Congress to determine.

We do not purport to assess the merits or demerits of
the "American Rule" with respect to the allowance of
attorneys' fees. It has been criticized in recent
years, and courts have been urged to find exceptions to
it ... . But the rule followed in our courts with
respect to attorneys' fees has survived. It is deeply
rooted in our history and ir. congressional policy; and
it is not for us to invade the legislature's province
by redistributing litigation costs in the manner
suggested by respondents and followed by the Court of
Appeals.

421 U.S. at 247, 262, 270-71.

We therefore recommend that the Judicial Conference,
if it wishes to proceed with this Rule 68 proposal or another

171

proposal similar in substance, should not submit the proposal for
Supreme Court rulemaking, but rather arrange for its introduction
in Congress.

B. The Rule Cannot And Should Not Apply To The United States.

1. The United States Has Not

Waived Its Sovereign Immunity.

We also oppose the proposed draft of Rule 68 because we
dispute the apparent assumption set forth in the Committee Note
that the amended Rule 68 would apply to the United States. , The
Note refers to the Government in the context of the time "needed
to consider the offer of settlement. However, as discussed
below, the United States cannot be made liable either for attor-
neys' fees and related expenses (other than costs awardable
pursuant to 28 U.S.C. 2412(a)) _1/ or interest, 2/ in the absence
of a statute waiving sovereign immunity. Proposed Rule 68, if
applicable to the United States, would thus attempt to make
substantive changes in applicable law and would be invalid.
Accordingly, if proposed Rule 68 is adopted, we recommend that to
prevent confusion the Rule expressly exempt the United States.

The Rules Enabling Act, 28 U.S.C. 2072, makes it clear
that rules promulgated by the Supreme Court "shall not abridge,
enlarge or modify any substantive right." See Sibbach v. Wilsor. ,
312 U.S. 1, 7-8 (1941). In particular, the authority given the
Court by that Act "to make rules of procedure for the exercise cf
its jurisdiction is not an authority to enlarge that jurisdic-
tion." United States v. Sherwood, 312 U.S. 584, 589-91 (1941);
see also Sibbach v. Wilson, supra, 312 U.S. at 10 (court rules
may not "extend or restrict the jurisdiction conferred by a

1/ 28 U.S.C. 2412(a) expressly excludes attorneys' fees from

the costs awardable pursuant to that section unless they are
"otherwise specifically provided for by statute."

2/ Under 28 U.S.C. 2411 and 28 U.S.C. 1961, interest may run
against the United States only after a judgment is final.
Moreover, in Federal Tort Claims Act suits and other kinds
of litigation, the permissive statutory language is sharply
limited by the provisions of 31 U.S.C. 1304. Thus, interest
is payable on a judgment under the Federal Tort Claims Act
only when the United States appeals a judgment and the
judgment is affirmed, and only from the date of filing of a
• transcript of the judgment with the General Accounting
Office, whichever is later. Remir.ga v. United States, 6S5
F.2d 1000 (6th Cir. 1982); Rooney v. United States, 694 F.2d
582 (9th Cir. 1982) .

172

statute.") It is well established that sovereign immunity is
jurisdictional (see, e.g., Soriano v. United States, 352 U.S.
270, 276 (1957)) and that "the terms "of [the sovereign's) consent
to be sued in any court define that court's jurisdiction to
entertain the suit." United States v. Sherwood, supra, 312 U.S.
at 586. And a court nay not impose a monetary penalty upon the
United States under the Federal Rules in the absence of an
explicit waiver of sovereign immunity. See Land v. Dollar, 330
U.S. 731, 738 (1947) (absent a legislative waiver of sovereign
immunity, a court has no power to make an award which would
"expend" itself on the public treasury or domain"); see also
United States v. Sumitomo Marine & Fire Ins. Co., 617 F. 2d, 1365
(9th Cir. 1980) . Therefore, a Federal Rule cannot by itself
empower a court to impose a monetary remedy against the
government .

The United States has not waived its sovereign immunity
against attorneys' fee awards in general, but only to the
specific extent set forth in various statutes. See, e.g., Ecual
Access to Justice Act (1980), 28 U.S.C. 2412(b), Pub. L. 96-481,
title II (94 Stat. 2325); Civil Rights Attorneys' Fees Awards Act
of 1976, 42 U.S.C. 1988, Pub. L. 94-559, §2 (90 Stat. 2641). And
it is clear that interest is not recoverable from the United
States in the absence of legislation' waiving sovereign immunity
and specifically authorizing such recovery. 3/ As the Supreme
Court recently reiterated in Ruckelshaus v. Sierra Club, 103 S.
Ct. 3274 (July 1, 1983), waivers of sovereign immunity must be
strictly construed in favor of the United States:

Except to the extent it has waived its immunity, the Govern-
ment is immune from claims for attorney's fees [citation
omitted] . Waivers of immunity must be "construed strictly

3/ United States v. Alcea Band of Tillamccks, 341 U.S. 48, 49
(1951); United States v. Thayer-West Point Hotel Co., 329
U.S. 585, 588 (1947); United States v. Goltra, 312 U.S. 203,
207 (1941); United States ex rel. Angarcia v. Bayard, 127
U.S. 251, 260 (1888). Congress recently rejected an attempt
to impose pre-judgment interest on the United States.
During consideration of legislation ultimately enacted as
the Federal Courts Improvement Act of 1982, the Senate
Judiciary Committee proposed an amendment to 28 U.S.C. 1961
that would have authorized recovery of prejudgment interest
generally and applied the proposed prejudgment ir.terest
rules to the United States. S. 1700, Sec. 302, 97th Cong.,
1st Sess. These provisions were eliminated from the measure
by means of a floor amendment after the Office of Management
and Budget lodged an objection on behalf of the Administra-
tion. 127 Cone. Rec. S14699-14701 (Dec. e, 1961).

173

in favor of the sovereign," [citation omitted] and not
"enlarge [d] . . . beyond what the language requires"
[citation omitted] . In determining what sorts of fee awards
are "appropriate," care must be taken not to "enlarge" [the
particular statute's] waiver of immunity beyond what a fair
reading of the language of the section requires.

103 S.Ct. at 3277.

We are confident that no existing statutory waiver of
the United States' sovereign immunity would extend to proposed
Rule 68. The Equal Access to Justice Act, the broadest
fee-shifting statute applicable to the United States, makeV 'the
United States liable for the reasonable fees and expenses of
attorneys only "to the same extent that any other party would be
liable under the common law or under the terms of any statute
which specifically provides for such an award." 28 U . S .C.
2412 (b) (emphasis added). However, since a procedural rule
promulgated by the Supreme Court is not a statute, 4/ section
2412(b)'s waiver of sovereign immunity would not authorize the
award of attorneys' fees and expenses against the United States
under Rule 68. That specific and limited waiver simply cannot,
under the Ruckelshaus strict construction rule, be construed to
extend to what would be a judicially-created rule expanding
drastically the exposure of the United States to attorneys' fee
awards .

2 . The Expenses Sanction Would Be Inappropriate
In Many Cases Involving The United States.

There are many types of cases in which it would be
inappropriate to impcse Rule 68 sanctions against the United
States. Many lawsuits involve issues of public policy where the
Government's actions should not be constrained by the threat of
Rule 68 sanctions. For example, in cases involving the proper
interpretation or application of an agency rule, the Government
should be free, without risking the imposition of Rule 68
sanctions, to press for the interpretation or application sought
by the agency even though the Government attorneys may be uncer-
tain about the likely outcome. Absent the relatively infrequent
situation in which the United States can concede the invalidity
of the ruling or regulation, settlement on a negotiated basis is
generally impossible, and acceptance of an offer of settlement cr
the making of a counteroffer by the United States would not be
viable options.

4/ Founding Church of Scientology v. Bell, 603 F . 2d 945, 952

(D.C. Cir. 19 79); Walko Corp. v. Burger Chef Svstems, Inc.,
554 F.2d 1165, 1168 n.29 (D.C. Cir. 1977).

174

Moreover, the possibility that Rule 68 could be applied
in suits for equitable relief could seriously interfere with the
Government's ability to carry out its law enforcement responsi-
bilities to the public. Defendants in injunctive suits brought
by the United States often offer limited relief as a settlement.
For example, in an antitrust case involving a merger, the defen-
dant might offer to sell particular assets of the acquired firm.
The Government should not be forced to accept the threat of
liability for the offeror's legal fees, as the price of pursuing
relief it considers essential to protect the public interest --
and offerors should no', be afforded such a weapon to wield.

Similar problems would arise in damage suits age-ihst
the United States of nationwide significance, such as swine flu
litigation, radiation cases, and toxic tort suits, where a
primary consideration of the United States with regard to settle-
ment has been the impact of a settlement on related cases.
Recovery by the plaintiff is far from assured in such cases
because of problems in finding a viable theory of liability and
establishing causation. Yet, assuming arguendo that amended Rule
68 would apply, presumptive liability for expenses would attach
for failure to accept an offer of settlement, subject to
reduction in the discretion of the court. Moreover, the option
•of making a counteroffer, a basis for requesting a discretionary
reduction of an award cited in the Advisory Committee Note, would
generally not be available in these types of cases at least until
it became evident as a result of judicial decisions that the
United States had substantial exposure on the issue- of liability.

In sum, we do not believe it is reasonable for the
United States -- whose settlement decisions in many types of
cases involving public policy issues simply cannot be limited or
reduced to monetary considerations -- to be forced to speculate
about its adversaries' future litigation activities and thus
subjected to the coercion implicit in such considerations that
are unrelated to the merits of the case.

If Rule 68 is made applicable to the United States
despite our objections, we would urge that specific reference be
made in the Committee Notes to the model established by the Equal
Access to Justice Act pursuant to which the United States should
have the opportunity to prove substantial justification for its
refusal to compromise as one factor that the court, in its
discretion, should apply. There are many times in litigation
when a federal agency, particularly in defending one of its
rules, should not accept an offer to ccmpromise, even if its rule
is subsequently invalidated by the judgment. Under the Equal
Access to Justice Act, the agency (the non-prevailing party in
this instance) still has an opportunity to prove substantial
justification for its position and, if successful, avoid the
payment of attorneys' fees. The Committee Note on proposed Rule
68 recognizes that "[n]othing in the rule affects the court's

175

statutory authority to award attorneys' fees to a prevailing
party in certain types of cases," and that "the rule's express
grant of discretion to the judge should protect against any award
that is 'unjustified under all of the circumstances'." The
Committee goes on to say that this "discretion should assure that
awards under this rule do not frustrate the various policies of
the fee statute." Thus, specific reference to the United States'
opportunity to prove substantial justification is appropriate.

3 . The Rule Should Not Apply To Condemnation Cases .

The proposed amendments to Rule 68 present a special
problem in the condemnation context. The amended Rule would
allow either party to make an offer of settlement and if the
final award were less favorable to the offeree than the offer,
the offeree could be ordered to pay the offeror's costs and
expenses. Two circuits follow the rule that the Government's
recovery of costs against a condemnee would diminish the land-
owner's award of just compensation in violation of the Fifth
Amendment. U.S. v. 101.80 Acres of Land, More or Less, in Idaho
County, 716 F.2d 714, 728 fn. 26 (9th Cir. 1983); Grand River Dam
Authority v. Jarvis, 124 F . 2d 914 (10th Cir. 1942). If a land-
owner refuses a Rule 68 offer from the United States, and the
•ultimate award is in accord with the offer, but payment of costs
and expenses to the United States is denied for Fifth Air.endiF.ent
reasons, the Rule would become a one-way street permitting its
use by landowners but not the United States. Therefore, if
proposed Rule 68 is to be adopted and made applicable to the
United States, condemnation actions under Rule 71A should be
exempt.

C . Merits Of A Rule Change Along The Lines Of Proposed Rule 68

For the foregoing reasons, the Department of Justice
opposes development of this Rule 68 proposal through Judicial
Conference rulemaking and opposes its application to the United
States. Nonetheless, the Department fully shares the Advisory
Committee's concern about the proliferation of costly and lengthy
civil litigation. Frivolous lawsuits are brought all too fre-
quently, burdening the courts and imposing unjustified litigation
expenses. Various groups and organizations across the country
have been wrestling with the problem of devising fair and effec-
tive alternative ways of resolving or settling disputes swifter
and at a lesser cost to the parties than is possible under our
present system. The Department of Justice strongly believes that
the process of exploring svch alternatives is of crucial impor-
tance to our judicial system.

We recognize that Rule 68 in its present form has not
been an effective tool to encourage settlements. It applies to
settlement offers made by defendants but not by plaintiffs. The
only sanction is the award of court costs, which in general do

176

not include defendants' attorney's fees and in most instances are
too small to be a significant factor in motivating settlements.
Paradoxically, even that limited sanction becomes unavailable to
the defendant if the plaintiff, after failing to accept a Rule 68
offer, loses the case entirely; the Supreme Court recently held
that the sanction can be invoked only when the plaintiff prevails
as to some part of his claim, but recovers less than the amount
or value of the defendant's settlement offer. Delta Air Lines,
Inc. v. August, 450 U.S. 346 (1981).

Accordingly, although the Department of Justice does
not believe that the Judicial Conference rulemaking process is
appropriate to a change of this magnitude, we recognize the
reasons for the Committee's view that Rule 68 must be amended if
it is to play a major role in deterring unnecessary litigation.
We also recognize that a rule along the lines of the Committee's
proposed Rule 68 offers potential benefits that should be
considered, along with the risks and workability questions it nay
raise, if Congress decides to explore amendments to Rule 68 as an
approach to the problem of burdensome litigation.

We agree with the Committee (page 11 of the Notes) that
a rule along the lines of proposed Rule 68 could encourage more
serious evaluation of a proposed settlement at an earlier stage
than otherwise might occur, which should lead to more disposi-
tions of cases before the heaviest expenses have been incurred.
Litigants confronted with a settlement offer from an opponent
during the early stages of a lawsuit may hesitate to commence
serious negotiations for fear that any expression of willingness
to pursue settlement will be perceived as a sign of weakness.
While the amended Rule might not give litigants an incentive to
make settlement offers any earlier in the course of litigation
than under current practice, it would give them an incentive to
give sericus and immediate consideration to any offer that is
made by an opponent, including offers made during the early
stages of a lawsuit.

Additionally, a strengthening of Rule 68 could have the
desirable effect of discouraging the maintenance of claims that
have so little merit that the risk of having to pay the defend-
ant's attorney's fees far outweighs the remote or speculative
possibility of recovery, as well discouraging the maintenance of
frivolous defenses. Although the defendant could not invoke the
sanctions of Rule 68 by making a "token" settlement offer, the
defendant might be prepared in some cases to make a non-trivial
settlement offer simply to avoid the much greater expense of
defending claims it considers frivolous. A defendant confronted
"wi-th an inflated claim could offer the fair value of the claim
and later claim attorneys' fees if the plaintiff did not accept.
In such instances, Rule 68 would constrain the plaintiff tc
accept the settlement offer rather than holding out for a -ore
generous offer or proceeding to trial in order to avoid the

177

strong likelihood of having to pay the defendant's legal fees.
Thus, defendants generally should be able to settle frivolous or
inflated claims on financially more advantageous terms than they
can at present. Similarly, defendants would be encouraged to
accept reasonable settlement offers rather than interposing
dubious defenses as a delaying tactic, at least in situations
where no fee-shifting statute affords successful plaintiffs a
right to attorneys' fees.

Even if the offeree rejects a Rule 68 settlement offer,
such a rule may discourage dilatory tactics in the subsequent
conduct of the lawsuit. If the offeree believes that there is a
significant chance that it will have to pay an opponent's ~ - -•
expenses and attorney's fees, it will have an incentive to limit
the likely award by avoiding such tactics. And the offeror would
have to take into account the discretion of the court to deny it
an award of expenses due to dilatory tactics on its part.

Finally, plaintiffs would benefit from the recovery of
pre-judgment interest against defendants, some of whom consciously
refuse to settle until they reach the courthouse steps in order
to retain the use of the funds. Such defendants might be less
inclined to delay settlement negotiations because liability for
interest would remove the economic advantage of delay.

Notwithstanding these potential benefits, we also see a
number of potential drawbacks to a rule along the lines of
proposed Rule 68. The most fundamental concern, in our view, is
the risk that the proposed Rule would deter meritorious claims or
defenses. A Rule 68 offer of settlement would be, in effect, an
ultimatum from an adversary -- with consequences to the offeree
that are potentially quite severe, but substantially unknown ar.d
unpredictable. The philosophy underlying the American Rule is
that citizens should not be deterred by high litigation costs
from asserting their rights. If many settlements were unfairly
forced pursuant to Rule 68 , the price to our judicial system
would be high.

The litigation risks imposed by proposed Rule 68 might
fall unevenly. With respect to parties o'f modest means who could
be bankrupted by attorneys' fee awards that would have de minimis
effects on wealthy opponents, the risk of less is likely to
affect the calculations of the financially weaker party to a
substantially greater extent than it affects the calculations of
his opponent. Personal injury litigation often represents such a
situation, since the defendant is commonly safeguarded against
the burden of litigation costs by insurance. In these types of
cases, many plaintiffs are financially unable to obtain legal
representation except on a contingent fee basis. Rejection of a
Rule 68 settlement offer made by the defendant (or by the insur-
ance carrier as the real party in interest) could threaten such a
plaintiff with litigation expenses that he could not hope to
satisfy. The litigant with greater financial resources may often
retain higher-priced legal counsel than his opponent would choose

178

or could afford, thereby forcing a party with a meritorious case
to accept the risk that the rejection of a Rule 68 settlement
offer made by the wealthier party would lead to unacceptable
litigation costs. In such circumstances, a party could be
unfairly pressured to settle even a solidly-grounded suit or
abandon a bona fide defense on terms advantageous to the
opponent .

Moreover, evaluating litigation hazards is an extremely
difficult task in any suit. Proposed Rule 68 would make this
task even more difficult by requiring the offeree to predict as
well how extensive the offeror's future expenses might be,
including estimating the length of pre-trial, trial and even'
post-trial proceedings. Although the judge would have discretion
not to award fees under proposed Rule 68, the offeree would have
to make its decision well in advance of- that determination by the
court, and would have to rely on its prediction of that later
ruling. The attorneys' fees in some types of cases can be
enormous; and fees can multiply beyond all expectations where
appeals result in new trials. We question whether offerors
should be provided with such sizeable bludgeons. 5/

The use of Rule 68 by plaintiffs may present special
problems. Plaintiffs, as initiators "of litigation, already
control its timing. A defendant who is not yet fully informed
regarding the merits of the litigation could be placed in a
difficult position by a settlement offer made very early in the

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would have to rely on some future assessment by the court, made
with the benefit cf 20-20 hindsight.

In addition to these general concerns about the impact
of proposed Rule 68, we also have questions about its workability
and effectiveness. One such question is whether the proposed
Rule, on balance, would have the intended results of more settle-
ments and less extensive litigation. It appears that in certain
situations the proposed Rule might decrease the likelihood of
settlements. Absent a fee-shifting mechanism, parties must
consider the cost of attorneys' fees along with the likelihood of
recovering or paying damages in deciding whether to settle a
case. The proposed Rule would offer each party the possibility

5/ Indeed, the two states whose procedures are cited with
approval in the Advisory Committee Notes do not allow
open-ended awards of attorneys' fees under the offer of
judgment procedure. In Connecticut, the maximum award of
attorneys' fees to either a plaintiff cr a defendant is
S350. 52 Ccnn. Gen. Stat. §§52-192a(b) and 52-195(b). In
New Jersey, the maximum amount is S750. New Jersey Civil
Practice Rules 4:58-2 and 4:58-3.

179

of having its fees paid by the other if they do not settle.
Thus, if the parties to a suit were relatively optimistic about
their prospects, the Rule might decrease the likelihood of
settlement, since each party would be able to discount the legal
fees it would be likely to have to pay if it did not settle. 6/

Moreover, a party who does not believe it will have to
pay its own fees has a diminished incentive to minimize those
fees. Thus, where the parties are relatively optimistic about
their chances, they may incur greater expenses after the offer
has been made than they would otherwise have incurred. Since the
attorneys' fees as well as the damages reguested will be at
stake, they may be willing to invest more in litigation to* assure
victory. Accordingly, it is not clear that the effect, on
balance, of the proposed Rule would be to discourage extended
litigation.

Perhaps our most serious concern about the proposed
Rule's effectiveness, however, relates to the discretion provided
the court to reduce expense awards. We cannot disagree with the
Committee's perception (page 11 of the Notes) of a need for
judicial discretion "to avoid the Draconian impact of an 'all-or-
nothing' rule." Howeyer, in our view this discretion, which
according to the Note is broad but not "unbridled," creates a
potential for increased litigation that would undercut the
purposes of the Rule. These amendments might simply substitute
attorneys' fee litigation for litigation on the merits.

Most obviously, the judicial discretion authorized
under the Rule might generate considerable litigation at the
district court level on the amount of an expense award. The
questions presented would include: Was the judgment more or less
favorable than the offer? In the common situation where settle-
ment offers and counter-offers are made throughout a case, which
offer or offers trigger the Rule? And from what date are
expenses due? Were the expenses incurred from that date reason-
able? Was it reasonable to reject the settlement offer? l_l Kow
burdensome would the award be? Less obvious, but equally
troublesome, is the possibility of increased litigation by way of
appeals. Beyond the existing excess of appeals on the merits,

_6/ Conversely, as we have noted above, a relatively pessimistic

party would have a greater incentive to settle because it

would face the threat of paying its opponent's legal fees.

■ Parties who are relatively pessimistic about their chances

may be relatively likely to settle in any event, however.

7/ This question would create serious attorney-client privilege
problems where a party rejects an offer on advice of
counsel. And malpractice suits would surely result where
such rejections are held unreasonable.

180

the appellate courts might be inundated by challenges to the
discretion exercised (or not exercised) in cases where Rule 68 is
invoked. Thus, a rule along the lines of proposed Rule 68 would
create a serious dilemma. Judicial discretion regarding the
expenses award seems essential, but the litigation and
uncertainty caused thereby could undercut the purposes of the
Rule.

An additional factor that should be considered by
Congress before pursuing the approach embodied in proposed Rule
68 is the apparent conflict with existing federal fee-shifting
laws, such as the Clayton Act or the civil rights laws, which
entitle the prevailing plaintiff to reasonable attorneys '" Tees
but withhold such relief from the prevailing defendant. In cases
arising under such laws, which reflect congressional policy
judgments relating to the burdens and societal benefits of
private enforcement, the Rule would operate asymmetrically by
providing the defendant with the opportunity to obtain attorneys'
fees but extending no corresponding benefit to the plaintiff, who
by statute is already entitled to attorneys' fees if he prevails
in the lawsuit. One court has already opined that the proposed
amendments

would significantly undermine the objectives of the
fee-shifting provisions of the civil rights laws . . .
Specifically, the policy underlying the cost-and-fee-
shifting provision of Rule 68 (to encourage settlement)
would conflict directly with the policy underlying the
fee-shifting provisions of the civil rights laws (to
encourage private plaintiffs to litigate civil rights
violations) .

Eitsouni v. Sheraton Hartford Corp., 33 FE? Cases 894, 901-2 (D.
Conn. 1983) .

In weighing whether amendments to Rule 68 are
advisable, it should also be noted that recent amendments to
other Federal Rules are now available to help promote settle-
ments. Rule 16 has been amended to list . settlement as a subject
to be discussed at a pre-trial conference, a provision that will
require timely consideration of possible settlements. Similarly,
the early involvement of the court in supervising and prompting
the discovery process, by such steps as issuing scheduling
orders, should also increase the possibilities for settlement
because adequate discovery generally is necessary before settle-
ment options can be evaluated. At present, a much larger number
of cases are settled than are tried and settlements generally are
reached by a process of compromise, with the parties perceiving
the final agreement as mutually advantageous. The Rule 16
innovations, although designed to produce an environment where
profitable settlement negotiations will flourish, still preserve

181

the voluntariness of the settlement itself and thus avoid some of
the concerns we have noted with respect to proposed Rule 68.

D# The Rule Should Not Apply To Equitable Relief.

Of particular concern to us is the effect proposed Rule
68 would have in cases involving equitable relief. 8/ First, the
risk of unduly complicating and prolonging litigation is espe-
cially serious in such cases. The nature of equitable relief
will often make a comparison of the relief offered with the
relief obtained substantially more difficult than a comparison
among judgments expressed in dollar amounts. Even if the court
is able to conclude that the relief obtained is not more"""'
favorable to the offeree than the relief offered, the uncertainty
surrounding such determinations is likely to affect as well the
reasonableness of the refusal, further complicating that issue.

Second, the difficulty of predicting how the court will
compare proposals for equitable relief imposes an even heavier
burden on offerees than they would face in suits for money
damages. Accordingly, there is an increased danger that applica-
tion of the proposed Rule to offers of settlement involving
ecuitaole relief would deter the maintenance of meritorious
claims or defenses, particularly where the resources of parties
are unequal.

Finally, equitable actions are more likely to involve
issues of public importance than are actions for damages.
Forcing a party to choose between relief it considers insuffi-
cient and the threat of being required to pay substantial
attorneys' fees to its opponent might seriously interfere with
the vindication of important rights, to the detriment of society
as a whcle. Therefore, we believe that if proposed Rule 6£ is

Although we understand that the Committee did not have in
mind settlement offers involving equitable relief, existing
Rule 68 refers specifically to an offer of judgment "for the
money or property or to the effect specified." At least one
court apparently assumed that the rule applied to injunctive
relief. See Mr. Hanger, Inc. v. Cut Rate Plastic Hangers,
Inc., 63 F.R.D. 607 (E.D.N.Y. 1974). The proposed
amendments would not eliminate the reference to judgments
"to the effect specified." Moreover, the first sentence of
the Note refers to a judgment "for a specified amount of
money or property, or other relief."

182

adopted, it should be confined to offers of judgment for money or
property. 9/

E. Technical Comments

1. The 30-day Period Is Too Short.

The proposed amendments to Rule 68 would provide that
an offer shall remain open for 30 days unless a court authorizes
earlier withdrawal. While the 30-day period is an improvement
over the 10-day period in the present rule, we believe it is
still insufficient and that an offer should remain open for 60
days. The Committee Note clearly contemplates that after., an
offer is made the offeror must permit the offeree to have access
to discoverable information in order to evaluate the fairness of
the offer. But many types of discovery (e.g., Rule 33 interroga-
tories and Rule 34 requests for production of documents) do not
require a response for 30 days, unless the response time is
shortened by order of the court. A 60-day period would at least
allow for the possibility of the kind of discovery, and analysis
of that discovery, contemplated under the proposed amendments.

Moreover, the Committee Note's statement that a reason
for the extension is to give an offeree, such as the United
States, the time to obtain the authority necessary to act on the
offer would cause a problem because it may suggest to courts that
30 days (or whatever other period is provided) is sufficient,
when in many cases involving the United States it is not. In
some cases, the personal approval of the Deputy Attorney General
is required. 28 C.F.R. §0.165. In others, the approval of an
Assistant Attorney General is necessary. 28 C.F.R. §1.168 and
Appendix to 28 C.F.R. Part 0, Subpart Y. Any time a settlement
is outside the delegated authority of the immediate litigation
unit, with the result that approval at a higher level or levels
would be needed, final action, would normally take substantially
longer than 30 days.

9/ Although there may be situations where it would be unfair to
apply Rule 68 to a settlement offer involving money or
property without taking into account injunctive relief
requested in the same case, a district court could use the
discretion afforded it under the Rule to avoid such
inecuities .

183

2. The Rule's Interaction With

Rule 54(d) Should Be Clarified.

A prevailing party ordinarily recovers costs under Rule
54 (d) , although the court may exercise discretion to deny them.
If the Rule 68 proposal is adopted in some form, we would also
suggest that the Advisory Committee clarify in the Notes how Rule
68 is intended to interact with the costs provision of Rule
54(d) .

In our view, when a party has prevailed but unreason-
ably rejected a Rule 68 offer of equal or better value, costs
incurred after the date of the offer should be denied because
they would not have been necessary if the offer had been
accepted; prior costs could be allowed and offset against the
amount owed by the offeree to the offeror under Rule 68. •

In addition, proposed Rule 68 would provide that
" (c]osts, expenses, and interest shall not be awarded to an
offeror found by the court to have made an offer in bad faith."
It is unclear whether the reference to "costs, expenses and
interest" includes any and all costs, expenses or interest to
which the offeror would be entitled .under any of the Federal
Rules of Civil Procedure in the event of a judgment in the
offeror's favor, or is instead limited to the monetary sanctions
provided for by Rule 68.

II. RULE 71A (CONDEMNATION OF PROPERTY)

We support the proposed amendments to Rule 71A(h). The
amendments would remedy three problems that currently arise with
the use of commissions in condemnation cases -- with respect to
which our Land and Natural Resources Division has had consider-
able experience. The first problem arises when one of the
commissioners, through death 'or disability during trial, becomes
unable to hear the balance of the evidence. In most cases, a new
commissioner has been appointed and the trial re-started. The
proposal would permit alternate commissioners, just as alternate
jurors are currently permitted. The second problem occurs when
the judge appointing the commission asks the parties to suggest
potential commissioners. This procedure usually results in a
commission being more like an arbitration panel than an impartial
factfinder. The proposal would require the judge to appoint the
commission and alternates without consulting the parties. The
final problem is that there has been no established procedure to
inquire into the qualifications and biases of the commissioner? .
The proposal establish such a procedure. We support the entire
Rule 71A proposal.

184

III. RULE 83 (DISTRICT COURT RULES)

We favor the proposed amendments to Rule 83 that would
provide for a notice and comment period for local rules and give
circuit judicial councils authority to abrogate rules which may
be unreasonable or inconsistent with the Federal Rules of Civil
Procedure. We also favor the requirement that proposed local
rules be furnished to the Administrative Office of the United
States Courts, which would make them available to the public.
This should prevent a party being prejudiced by a local rule
whic/i is readily available only to a local counsel and court
employees .

However, we oppose that part of the proposed Rule 83
amendments that would grant district courts authority to adopt,
for up to a two-year period, experimental local rules which are
inconsistent with the Federal Rules of Civil Procedure. These
provisions of proposed Rule 83 would violate the precepts of the
Federal Rules as well as Title 28 of the United States Code.

Rule 1 of the Federal Rules of Civil Procedure states
that the Rules "shall be construed to secure the just, speedy,
and inexpensive determination of every action." By permitting
each district court to create rules 'inconsistent with the Federal
Rules, amended Rule 83 would cause mass confusion and encourage
forum-shopping. It would also contravene 28 U.S.C. 2071, which
requires that the rules of the Supreme Court and all courts be
consistent with the rules of practice and procedure prescribed by
the Court. Thus, the Supreme Court cannot promulgate a rule that
enables district court rules and practices to be inconsistent
with other rules that it has promulgated.

Amended Rule 83 would also be inconsistent with 28
U.S.C. 2072, which states that "[t]he Supreme Court shall have
the power to prescribe by general rules, the forms of process,
writs, pleadings, and motions, and the practice and procedure of
the district courts and courts of appeals in the United States in
civil actions. ..." The broad aim of section 2072 was to
create uniformity within the federal system. Monarch Ins. Co. v.
Spach, 281 F.2d 401, 408 (5th Cir. I960)'.

A further problem is that the litigation that would
arise from passage of proposed Rule 83 would increase the con-
fusion already resulting from its authorization of inconsistent
local rules. Courts would have to determine whether these
inconsistent rules so alter the litigation process as to affect
the ultimate outcome of litigation and frustrate federal
policies. Williams v. United States District Court, 658 F.2d
430, 435 (6th Cir.), cert, denied, 102 S.Ct. 960 (1981).

If it is decided that some rule experimentation is
needed, we believe that it should be controlled by the Judicial
Conference and instituted only in districts it selects: unless
there is the authority (which the Judicial Conference would have)

185

to matte a successful experimental rule permanent and universal,
no valid purpose would be served.

IV. SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS
A. General Opposition

We believe that the proposed revisions to admiralty
rules B, C and E, except as noted below, would be ill-advised,
both from the standpoint of admiralty practice and from the "needs
of the Justice Department enforcers of the Federal Pure Food and
Drug and Consumer Laws, which laws often enploy the admiralty
practice. In both instances, swift action without the ne-e-c* for
judicial intervention is often required.

In concept, these revisions are exactly backward.
Current practice, with the sole exception of the need for
immediate post-attachment hearings under Rule B, deprives no
shipowner of due process. The revisions, however, would deprive
lienors of due process in their only effective property right.

The maritime lien grew in a specific direction over
centuries, to serve a specific purpose. The maritime lien has
nothing in common with a land lien, much less the often doubtful
security devices imposed by merchants. Among the many distin-
guishing features of the maritime lien are secrecy,
non-consensuality , and inverse ranking, the last being senior.
The lien law developed in this direction to accomplish the
specific purpose of encouraging services to foreign and domestic
commerce by water -- a most mobile, remote, and often elusive and
anonymous, business.

The proposed revisions would defeat this purpose. The
maritime lien gives the lienor a property right in the res
itself, a form of co-ownership. Merchants Nat. Bank v. Dredge
Gen. G. L. Gillespie, 663 F.2d 1228 (5th Cir. 1981) . The
enforcement of this right requires extreme diligence to find the
res in order to sue. Not only are ship movements generally
unpredictable and unadvertised, but port time in this age of
container, bulk, and oil trade is exceedingly brief. To reward
this diligence with the requirement that the lienor flush the
quarry by 'pre-arrest or pre-attachment motion practice would
effectively deny him the real opportunity to enforce his property
rights in most cases. 10/

10/ In this particular connection, the Committee pays inadequate
attention to Polar Shipping, Ltd. v. Oriental Shipping
Corp., 680 F.'2d 627 (9th Cir. 1982). This recent and

(Footnote Continued)

186

The proposed "exigent circumstances" safety-valve does
not remove our concerns. Either exigent circumstances will
routinely exist, in which case the revisions would be
meaningless, or exigence would be so circumscribed as to der.y due
process to the lienor. Indeed, arrest is currently resorted to
almost only in exigent circumstances; otherwise, security ar.d
arrest are stipulated.

The proposal does not make any distinction between
Rules B and C, which it would revise alike. 11/ However, there
is a significant distinction, which the cases on

constitutionality recognize. True Rule C in rem jurisdiction is
ancient and well understood both by lienors ana shipowner's*." It
views the ship herself as offender for tort lien purposes and the
thing to which credit is extended for contract lien purposes.
She carries jurisdiction to enforce these liens wherever she
goes. Her owner thus knowingly accepts the risk of arrest along
with all the other risks of sending a ship on a voyage. We can
see no genuine due process implications in enforcing direct
obligations by traditional in rem process.

We can also see nothing to be accomplished at a pre- or
post-arrest hearing. Whether the lien is valid requires a trial,
and is beyond the scope of a hearing. In the rare case of a
truly egregious arrest, the defendant ship may make its motion.
Otherwise, the rule which favors plaintiff's day in court should
presume the regularity already vouched for by the verification.
We question why revised Rule C should require a supporting
affidavit. First, there is no Rule C antecedent describing the
affidavit or what it should say. Second, it would be redundant.
The complaint should state the facts, and the verification should
attest to them. Together, they are an affidavit. The Munarco,
33 F. 2d 329 (E.D.N.Y. 1929) .

This is concededly "-not the case with Rule B cuasi-in ^
rem process. This is often misunderstood, and sometimes abused.
Judicial attachment is a means of obtaining personal jurisdic-
tion, through and to the extent of attached property. It is
obviously preferable to unsecured personal jurisdiction, which

(Footnote Continued)

important case upholds Rule B's constitutionality, so long
as there is guaranteed an immediate post-attachment hearing.
See also Amstar Corp. v. S.S. Alexandros T, 6 64 F.2d SO 4
(4th Cir. 1981) (Rule C) .

11/ Perhaps inadvertently, the certificate of exigent

circumstances required of plaintiff by Rule B is missing
from Rule C.

187

leads to the abuse of proceeding in districts where the gooes are
known to be, but the defendant is known not to be, or where the
defendant is so remotely present that his goods are detained
without cause but for a prejudicial period. The potential for
due process abuse is always present, as well as expense to the
garnishee, but so also is the abuse of removal of the goods in
the event of a pre-attachment hearing.

As is plain from the case law, Rule B has given the
courts, and the local rule-makers, considerable trouble. Because
of the reciprocal potential for abuse of this rule, we think it
advisable that either the rule, or the Committee Notes, provide
for a practice similar to that employed in the analogous rbrum
non conveniens cases. As is commonly known, the courts will
conditionally transfer foreign seamen's injury actions to foreign
tribunals, upon a showing that the seaman has effective relief
there. In the foreign - attachment context, there is always the
possibility that the defendant will be unable to respond in
damages, or in some way protected by local law, with the result
that the plaintiff will lose such security as the goods and
chattels within the district court's jurisdiction. Accordingly,
it would seem that at some point the defendant should be required
to show that effective relief in a foreign tribunal will indeed
be available to plaintiff.

We would therefore only revise Rule B, and Rule E as
necessary to secure consistency, to provide a post-attachment
hearing only, limited to the questions whether the defendant is
within the district or within any other district not prejudi-
cially inconvenient to the plaintiff — with the burden of
showing both on the plaintiff, but with an automatic order
restraining any movement of the attached property pending the
court's order. Any other matter would go so far into the merits
as to exceed the scope of a mere hearing.

In sum, except for Rule B as noted above, the revisions
seem ill-conceived, and without useful purpose. The only useful
hearing would come after arrest or attachment, when an adversary
could come forward to challenge the rare wrongful act. Arrest
and attachment of course deprive defendants of property or its
use. But the revisions weight the due process scales too heavily
in favor of defendants, virtually presuming deprivation of due
process, to the detriment of plaintiffs.

B. Civil Forfeiture Actions Should Be Exempted.

The proposed amendments would seriously damage the
efforts of the Justice Department to use civil forfeitures in
narcotics law enforcement. We believe that civil forfeiture
actions are one of the most effective means of combatting large-
scale drug trafficking organizations. Accordingly, if the

188

proposed amendments are to be adopted, we would urge there be an
exception for civil forfeiture actions.

As the Committee Note explains, the amendments are
intended to obviate challenges to the constitutionality of the
Rules based on the due process principles enunciated in the
Sniadach line of cases. However, these due process questions
have arisen solely in the context of private admiralty suits.
The Supreme Court has made it clear that the Government may seize
property for forfeiture without affording a hearing to the owner
of the property either before or promptly after the seizure.
United States v. Eight Thousand Eight Hundred and Fifty Dollars,
103 S.Ct. 2005 (1963); Calero-Toleco v. Pearson Yacht Leasing
Co. , 416 U.S. 663 (1974). Our concern is that the Note does not
reflect any awareness that civil forfeiture actions are governed
by the Supplemental Rules and that forfeiture actions do not
raise the same constitutional issues as private admiralty suits.
While the language of the Mote suggests that the amendments are
intended to address the problems that arise in private admiralty
suits only, the amendments would, apparently inadvertently,
impact on civil forfeitures as well.

The amendments would make the initiation of a civil
forfeiture action subject to judicial review both before and
promptly after the warrant of arrest issues. Presently, no
judicial review is generally available until the trial on the
merits of the forfeiture action. 1_2/ It especially concerns us
that the amendment to Rule C(3) would require the Government to
submit with the complaint an affidavit setting forth a prima
facie case. Apart from the paperwork burden this imposes, it
would reveal the Government's evidence to potential claimants who
often are also defendants in parallel criminal prosecutions. At
present, the Government can file a complaint and stay discovery
until after the conclusion of a parallel criminal action.

12/ Proposed Rule E(4) (f) would give any person claiming an
interest in the seized property the right to a prompt
post-seizure hearing at which the plaintiff (i.e., the
government) would have "the burden of shewing why the
seizure should not be vacated." At present, a claimant in c
civil forfeiture case has no right to a hearing until the
trial on the merits. A claimant can obtain a Rule 41(e)
probable cause hearing only if the government delays filing
the complaint or for the purpose of seeking suppression of
evidence in the civil action. Where a Rule 41(e) motion
based on delay is filed, the government typically responds
by filing a complaint promptly and arguing that this acticn
reouires denial of the Rule 41(e) motion.

189

The proposed amendments would impose a needless, heavy
burden on the Government and the courts. Two hearings rather
than one would be required in every forfeiture case. The Rule
E(4)(f) hearing would enable the claimant to discover the Govern-
ment's evidence at an early stage of the proceeding before he
himself is subject to normal civil discovery. He could then
tailor his answers to Government discovery requests to meet the
Government's evidence revealed at the Rule E(4) (f) hearing.

V. CONCLUSION

In summary, the Department of Justice opposes the Rule
68 proposal because^it believes that any such rule change should
be considered by Congress and that, in any event, it may not be
made applicable to £he United States; supports the Rule 71A
proposal; supports most of the Rule 83 proposal, but opposes the
district court experimentation authority; and opposes the
Admiralty rules proposal, both in general and as applied to civil
forfeiture actions.

Ke very much appreciate the opportunity to comment on
these important proposals and would be pleased to submit any
additional or clarifying comments that the Committee might
request.

Sincerely,

D. Lowell Jensen

Acting Deputy Attorney General

48-930 O— 85 7

190

BY HAND DELIVERY
June 5, 1985

The Honorable Robert W. Kastenmeier, Chairman
Subcommittee on Courts, Civil Liberties, and

the Administration of Justice
United States House of Representatives
Room 2137B, Rayburn House Office Building
Washington, D.C.

ESJ "Rules Enabling Act of 1985" (H.R. 2633)

Dear Representative Kastenmeier:

We understand that the Subcommittee on Courts, Civil
Liberties, and the Administration of Justice will soon hold
hearings on a revised version of an earlier bill to amend the
Rules Enabling Act. We represent law school teachers and persons
in public interest law organizations who are concerned about
problems in the judicial rulemaking system and specifically about
the contents of this bill.

We would like to commend the Subcommittee for taking an
interest in reforming the statutory delegation of rulemaking
authority. We appreciate the Subcommittee's sustained interest in
this important subject. Unfortunately, we do not believe that
H.R. 2633, as currently drafted, addresses the most fundamental
problems in the current structure of the rulemaking system.

Our concerns about the rulemaking process and about this
draft of the bill stem from our experiences with the current
structure. As you know, the Advisory Committees of the Judicial
Conference currently have under consideration two very
controversial proposals that would have the effect of limiting
access to the federal courts. The first proposal, which would
affect civil litigants, would amend Rule 68 of the Federal Rules
of Civil Procedure by imposing substantial attorney's fee
sanctions on parties who reject "reasonable" settlement offers.
As you also know, many judges and commentators believe this change
would work a substantive alteration, and would be in direct
derogation of rights accorded under the Civil Rights Attorney Fees
Awards Act of 1976 (42 U.S.C. §1988) and comparable fee-shifting
statutes.

The second proposal pending is to amend Rule 9 of the Rules
Governing Section 2254 and 2255 Proceedings in the United States
District Courts. If adopted, this proposal would dramatically

191

expand the circumstances under which courts could refuse to
entertain habeas corpus applications from prisoners. The proposal
would permit dismissals, without decisions on the merits, in all
cases in which the state or federal government can show it has
been "prejudiced" (presumably in any way) by a "delay" (undefined
in the proposed amendment) in the filing of an application for
habeas corpus. The drafters of the rule apparently did not take
sufficient cognizance of the fact that many prisoners who believe
they have been unconstitutionally convicted must wait a
substantial period of time to exhaust their opportunities for
direct appeal and for state collateral remedies before filing
habeas corpus applications.

Each of these proposals is of very doubtful merit, and both
are highly inappropriate for judicial rulemaking. Each of the
proposals was first advanced by an advisory committee in 1983, and
each was severely criticized at hearings in early 1984.
Nevertheless, each was re-published for further consideration in a
revised form in 1984 — and once again each has encountered
substantial criticism at hearings held -in early 1985. The Chief
Justice has nevertheless continued, both publicly and privately,
to urge the adoption of the two proposals. In fact, the proposal
to amend Rule 9 was developed directly after the Chief Justice
failed to persuade his colleagues on the Court to make a similar
change in the law via case adjudication. Compare Aiken v.
Spaulding. 684 F.2d 632 (9th Cir. 1982), cert, denied. 103 S. Ct.
1795 (1983) with 1983 Proposal and Advisory Committee Note
(reprinted at 98 F.R. D. 337 (1983)) and 1984 Proposal and Advisory
Committee Note (reprinted at 102 F.R.D. 407 (1984)). We have also
learned that the Chief Justice has written directly to members of
the Advisory Committee asking them to support the proposal for
changes in the habeas rules.

As you and other members of the Subcommittee know, these
recent developments do not represent the only time during which
serious questions have been raised about the Supreme Court's
exercise of its delegated rulemaking authority. The habeas corpus
rules amendments that the Court forwarded in 1976 required
Congressional hearings and revision (see Clinton, Rule 9 of the
Federal Habeas Corpus Rules; A Case Study on the Need for Reform
of the Rules Enabling Acts, 63 Iowa L. Rev. 15 (1977)), as did the
proposed Federal Rules of Evidence (see Pub. L. No. 93-595
(1975)). There seems to be a continuing pressure at the Judicial
Conference and the Court to expand "procedural" rulemaking into
areas which involve or affect substantive rights, and we have
found no signs of any institutional effort to curb this tendency.

192

Therefore, while we agree completely that reforms are needed
in this process (and appreciate the Subcommittee' s interest in
making them), we believe that H.R. 2633 omits several of the most
important, and most fundamental, reforms. One of the most basic
problems with the current rulemaking process is that there is no
adequate system of checks and balances to ensure that the Supreme
Court and the committees of the Judicial Conference confine their
rulemaking to the scope of the congressional delegation. The
Supreme Court promulgates the rules, and the Supreme Court reviews
them if they are challenged. This system contrasts sharply with
other rulemaking processes. Rulemaking by executive branch or
independent agencies can be "checked" by two other branches of
government: by Congress if it is dissatisfied with the agency's
exercise of its delegated authority and by an independent
judiciary. Federal judicial rulemaking, however, is subject only
to a limited Congressional check during the "layover" period
(during which Congress must pass affirmative legislation and
secure a presidential signature to delay or revise any rules
proposal other than one affecting evidentiary privileges) , and it
is not controlled by any other branch or governmental entity. In
fact, several justices of the Supreme Court have previously
objected to their role in the promulgation of the rules on the
grounds that they were required to precommit on issues that would
later come before them for review. See, e.g. , Order, 323 U.S.
821, 822 (1944) (memorandum of Justice Frankfurter). Commentators
also have observed that because of this dual role in its decisions
reviewing rulemaking the Court's objectivity has been compromised;
the Court's opinions in sibbach v. Wilson & Co., 312 U.S. 1 (1941)
and Hanna v. Plumroer, 380 U.S. 460 (1965) have been cited as
examples of this problem. For these reasons, and in light of our
recent experiences with Rule 68 and Rule 9, we do not think
legislation such as H.R. 2633 which retains the Supreme Court in
its present rulemaking role will produce effective and meaningful
reform in this process.

In addition to our general concern about the statute, we have
the following specific comments about points contained within or
pertinent to H.R. 2633:

1. We commend the fact that H.R. 2633 does not provide the
rulemakers with authority to "supercede" statutes. As you know,
we believe it is appropriate, both historically and legally, that
this supercession or "trumping" authority, contained in the 1934
Act, not be reenacted.

2. We also applaud the provisions of section 2073(d) which
require the rulemaking body making a recommendation to provide a

193

written report (including any minority or separate views) as well
as an explanatory note on any proposed rules. This change
represents a useful step forward. Since the "gap reports" that
are currently written are not publicly available (see

Rules Enabling Act; Hearings Before the Subcommittee on Courts.

Civil Liberties, and the Administration of Justice of the House
Comm. on the Judiciary. 98th Cong., 1st and 2nd Sess. 31 (1983 &
1984) [hereinafter cited as Hearings]), it is important for the
commentary accompanying this section of the bill to make clear
your intent to have these reports publicly maintained and
available.

3. H.R. 2633 continues the present practice of allowing the
Chief Justice to appoint all of the members of the advisory
committees and the Standing Committee. Your earlier bill, H.R.
4144, would have provided for the Judicial Conference, not the
Chief Justice, to make these appointments. In this and several
other respects, the earlier bill made the types of improvements
that many commentators had urged. Recent history, and in
particular the developments with respect to the proposed amendment
to Rule 9 in the habeas corpus area, furnishes illustration of the
need to redistribute responsibility for various aspects of the
rulemaking structure and process.

4. H.R. 2633 continues the present practice of not limiting
the length or the number of terms served by members of the
Advisory Committees or the Standing Committee. In this respect,
your earlier bill (H.R. 4144) which would have limited the terms
of service was far better.

5. Section 2072(c)(1) of the bill, which provides for more
open meetings, is problematic insofar as: (a) it allows for the
closing of a meeting simply upon a determination by committee
members (who have testified that they much prefer deliberating in
private, see Hearings at 11, 18-19, 91, 100-102) that it is "in
the public interest" to close meetings, and (b) the "legislative
history" to date on this provision of the bill (contained in the
sect ion- by- sect ion analysis of H.R. 6344) is very ambiguous (see
Hearings at 174-76) . As you know, the Sunshine in Government Act
provisions under which many other agencies operate contain far
more exacting openness requirements. At a minimum, we urge that
provisions be included in this legislation requiring the committee
members to give specific reasons for voting to close meetings to
the public, and that the legislation include a presumption in
favor of open meetings.

6 . We also suggest that, to assure informed congressional
consideration during the "layover" period, the full minutes of any

194

meetings that are closed by committee vote be maintained and made
available to the House and Senate Judiciary Committees when the
pertinent rules proposals are forwarded.

7. H.R. 4144 contained a nine-month congressional layover
period. This was a distinct improvement over the current periods,
which are too short. Unfortunately, H.R. 2633 shortens the time
to seven months.

8. We are opposed to the inclusion of the sentence in
Section 2074(a) of the bill which allows the Supreme Court to "fix
the extent [to which] such [newly promulgated] rule[s] shall apply
to proceedings then pending. " There will be circumstances in
which it would be particularly unfair to apply newly developed
rules to litigants in pending cases (who had proceeded in reliance
upon the earlier set of rules) . For a number of years the
rulemakers have included provisions in Federal Rule of Civil
Procedure 86 (or in the orders accompanying the rules) instructing
that once rules take effect:

They govern all proceedings in actions
brought after they take effect and also
all further proceedings in actions then
pending, except to the extent that in the
opinion of the court their application in
a particular action pending when the
amendments take effect would not be
feasible or would work injustice, in which
event the former procedure applies.
(Emphasis supplied.)

Unless and until this type of provision is shown to be inadequate,
it is unnecessary and may be counterproductive to assign the
Supreme Court the task of determining, in advance, to what extent
each newly promulgated rule shall apply to a pending proceeding.

9. Section 2074(a) of the bill should make explicit that if
amendments to a statute are necessary to implement a proposed
rule, the rule will not take effect unless Congress affirmatively
enacts those amendments.

10. Section 3 of the bill, which provides for the Judicial
Conference to periodically review local rules, should include a
minimum time period for that review, such as every two years.

11. Commentators have repeatedly criticized the fact that
neither the Supreme Court nor any of the Judicial Conference
committees has developed a set of guidelines delineating what they

195

believe to be the scope of their authority to promulgate
procedural (but not substantive) rules. See Burbank, The Rules
Enabling Act. 130 U. Penn. L. Rev. 1015, 1194-97 (1982). The bill
should include a specific requirement that the Judicial Conference
develop such a set of internal controls, and furnish a copy to
Congress.

Thank you for the opportunity to comment on this legislation.
Again, we wish to commend the Subcommittee for its sustained
interest in this matter, and to urge continued oversight and
revision. Please do not hesitate to contact us if you have any
questions. We would appreciate being kept apprised of revisions
in the bill.

Sincerely,

Nan Aron

Alliance for Justice

Laura Macklin

Institute for Public Representation

S3-utlith Resnick
Dennis E. Curtis
William Genego

University of Southern California
Law School

LM/ntl

Copies: Subcommittee Members

196

Alliance
Justice101

A Natipna' Association o* Qfgan.iai.pns Working tpf Eauai Justice

NAN AHON

WILHAM l Ta»lQh

■

PuV"*»» And P'O'e il'Onji

P»opie to* tn« PuDi>C InlfffMI

BY HAND

April 1, 1985

OMe< '0' Science
m Ihe PuOi.c imtitll

Coisufti«(S UfMO"

COMCAIiOn La* OM*'

Employment La* Cenier

Environment Detense Funn

Eouai Rignis AOvocaiei

Food Resea<cn ano
Aci>on Center

Mjfmon 4 Weiss

institute 10' PuOiic
Rep'eseniai.on

juvenile Law Cente'

Meniai Heann La* P'Oieci

National Education Association

NOW Legal Deiense ano
EOucai'O" Funa

Nat.onai Wiiai'le Fede'at'On

Naiionai Women s La* Cenie'

Nal>ve Ame'ican RtgMS Fund

Naiu'ai Resources Oetense

Council

Joseph F. Spaniol, Jr.

Secretary

Standing Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Administrative Office of the United States Courts

Washington, D.C. 20544

Re: Proposal to Amend Rule 68

of the Federal Rules of
Civil Procedure

Dear Mr. Spaniol:

Enclosed please find sixteen copies of
additional comments by the Alliance for Justice on
the current proposal to amend Rule 6 8 of the Federal
Rules of Civil Procedure.

/■

We appreciate the opportunity to forward
these additional views on the Advisory Committee ' s
proposal to amend the rule .

Please do not hesitate to contact me, or
Laura Macklin at the Institute for Public Representation ,
if you or members of the committee have any questions.

Puonc Aovocaies mc

Sie"a Out Legal
Oe'ense Funa

women s La* P'Oieci

Women s Legai Oe'ense Funa

Thank you.

Sincerely ,

Nan Aron
Director

Telephone (202) 624-8390

Enclosure

Mailing address 600 New Jersey Avenue N W Washington 0 C 20001
Sireet address 25 E Sueet SI w Washington D C 2000'

197

Alliance
Justice for

A National Association ol Organizations Working tor Equal Justice

nan aron
Executive Director

WILLIAM L TAYLOR
OUM

Busmess Ana Professional
People 'or in# Pubhc interest

Center lor Law tna
Soc<ai Policy

C«ni«r tor La* <

Puoiic imvMi

Center 'or Science
m the Pubnc interest

Consumers Union

EOocaiion Law Center

Employment Law Center

Environmental De'ense Fund

Equal Rignts Aovocaies

Food Research ano
Action Center

Harmon & WeiSS

institute tor PuDliC
Representation

juvenile Law Center

Mental Health Law Proiect

National Eoucanon Association

NOW Legal Defense ana
Education Fund

National Wiiahle eederaiiO"

National Women s Law Cenie-

Native American Rights Fund

Naiurai Resou'ces Defense
Council

New vO'li Lawyers I
PutJi'C interest

Puoiic Advocates mc

Sierra OuD Legal
De'ense Fund

Women s Law Proiect
women s Legal De'ense Funa

BEFORE THE JUDICIAL CONFERENCE ADVISORY COMMITTEE
ON THE FEDERAL ROLES OF CIVIL PROCEDURE

COMMENTS OF THE ALLIANCE FOR JUSTICE
ON 1984 PROPOSED AMENDMENTS TO RULE 68

Submitted on behalf of the
Alliance for Justice by:

Ann 0' Bryan

Student Intern
Charlotte B. Rutherford

Graduate Fellow & Staff Attorney
Laura Macklin

Assistant Professor & Assoc. Director
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
(202) 624-8390

April 1, 1985

Telephone (202) 624-8390

Mailing address 600 New Jersey Avenue N w Wasntngton D C . ,001
Sfeei address 25 E Street N W Washington D C 2000'

198

INTRODUCTION

The following comments on the proposed amendments to Rule 68
of the Federal Rules of Civil Procedure are submitted on behalf of
the Alliance for Justice, a national non-profit association of
public interest law organizations. A representative of the
Alliance for Justice testified at the Advisory Committee's
February 1, 1985 hearing on the proposed amendments to the rule,
and submitted written testimony at that time.1 These comments
will explore issues which warrant detailed consideration and were
not covered in the Alliance's earlier testimony. As the first
section of these comments explains, a detailed examination of how
a Rule 6 8 proceeding under the proposed amendment might work
reveals significant weaknesses and numerous unresolved questions
in the proposal. At a minimum, these problems appear to render
the proposed rule ineffective as a tool for achieving the goals
stated by the Advisory Committee. The second section examines one
problem in particular that will result from the adoption of the

1 In its testimony, the Alliance for Justice explained, Antej:
alia, that: 1) the need for the proposed amendments has not been
demonstrated by the Advisory Committee; 2) the proposal will work
in derogation of plaintiffs' rights under numerous fee-shifting
statutes; and 3) there is a serious question as to the Supreme
Court's authority to promulgate the proposed amendments. .£££
Testimony of the Alliance for Justice on the 1984 Proposal to
Amend Rule 68 (Jan. 28, 1985).

199

proposed rule: the attorney-client relationship will be
threatened. Finally, the third section discusses the fact that
many of the problems perceived by members of the Advisory
Committee can already be solved by existing rules governing
litigation and their accompanying sanctions provisions. Further,
the existing rules contain more appropriate standards of conduct
than the proposed Rule 68. For the reasons detailed herein, as
well as those enumerated in earlier testimony, the Alliance for
Justice opposes the proposed 1984 amendments to Rule 68.

I. An Examination of a Proceeding Under the
Proposed Rule Reveals Serious Problems.

A number of questions about the mechanics of a Rule 6 8
proceeding remain unanswered by the proposal. Neither the text of
the proposed rule nor the Advisory Committee Note details the way
in which a Rule 68 proceeding would occur. This is disturbing.
The mechanics of the proceeding will have a substantial effect on
the amount of time, money, and judicial resources devoted to
implementing the rule. Moreover, many of the proposal's
weaknesses are revealed by a detailed inquiry into how the
proposed rule would work.

Only a brief outline of a Rule 68 proceeding is available
from the text of the proposal. According to the text, once the
offeror has alleged that an offer was unreasonably rejected, the
court must make a determination of the reasonableness of the

200

offer. In order to make that determination, the court must
consider all of the relevant circumstances at the time of the
rejection, including:

1) the then apparent merit or lack of merit in
the claim that was the subject of the offer,

2) the closeness of the questions of law and
fact at issue,

3) whether the offeror had unreasonably refused
to furnish the information necessary to
evaluate the reasonableness of the offer,

4) whether the suit was in the nature of a "test
case," presenting questions of far-reaching
importance affecting non-parties,

5) the relief that might reasonably have been
expected if the claimant should prevail, and

6) the amount of the additional delay, cost, and
expense that the offeror reasonably would be
expected to incur if the litigation should be
prolonged.

The offeree can defend against the motion on the ground that the

offer was a sham or made in bad faith, according to the Advisory

Committee Note. Further, if the offeree has made a counteroffer,

the court will be required to make an additional, similar set of

findings about that counteroffer.

The text of the proposal and the accompanying Committee Note

lack a description of how the court should make these findings,

when, and against whom. Without such instruction, courts may have

a great deal of trouble attempting to enforce the rule, and

parties may not be able to understand how to comply. The

confusion that may develop from the incompleteness of the rule

201

could add significantly to the inefficiency and expense of
litigation because both the courts and litigants would be unsure
about how to proceed. One result of such difficulties is that the
rule may be rendered ineffective in achieving its goal of early
settlement. It is also possible that the rule will be interpreted
in ways that are unfair to some litigants and not uniform
throughout the judicial system.

A. The Scope of Factual Proof in a Rule 68
Proceeding Would Be Broader Than at Trial,
Resulting in More Expansive and Time-Consuming
T.itiaation. _ — .

The scope of the factual proof relevant in a Rule 68
proceeding under the proposed rule would be significantly broader
than the scope of discovery and proof on the merits. For example,
the trial court will have to determine what facts were known to
the offeree at the time of the rejection in order to make a
finding on the first factor ("the then apparent merit of the
claim"). This requirement of new factual findings will result in
the additional consumption of judicial and litigant time and
resources, which is contrary to the stated goals of the proposed
rule. Even without a clear indication of the form a Rule 68
proceeding will take, it seems evident that the proposed rule will
add 'yet another step to the process of litigation.

The question of exactly how much time a Rule 68 proceeding
will consume, however, remains unanswered because the proposal

202

gives no indication of how and in what form the court should make
its findings. For example, the question of whether the parties
will be accorded a full hearing on the sanctions issues remains
open. 2 Additionally, there are questions of whether the court
will have to make specific findings on each of the factors, and
whether the court will have to issue a written decision on its
findings. If any or all of these questions are answered in the
affirmative, the Rule 68 proceeding will become more complex and
the burden on litigants and courts will be increased. However,
these kinds of requirements are not merely technical, they help to
ensure that the rights of the parties will be protected.

B. The Timing of a Rule 68 Proceeding Is a Critical
Yet Unanswered Question.

The timing of a Rule 68 proceeding will also be important,
and yet again, the proposed rule and accompanying Note describe
the timing of the proceeding only briefly, by stating that the
offeror's motion must be made within ten days of the entry of
judgment. Although this appears to imply a post-trial proceeding,

2 Compare the procedural steps Congress intended courts to
follow in sanctioning pursuant to 28 U.S.C. § 1927. H.R. Rep. No.
1234, 96th Cong., 2d Sess. 8 (Conference Report), reprinted in
1980 U.S. Code Cong. & Ad. News 2781, 2783 (attorney must be
accorded a full hearing and due process before sanctions may be
imposed). See Barnd v. Tacoma. 664 F.2d 1339 (9th Cir. 1982).
For a discussion of 28 U.S.C. § 1927, see infraf p. 23-26.

203

the language of the rule does not foreclose a pre-trial
proceeding. Hence, it is not clear whether the Advisory Committee
intends the motion and proceeding to be pre- or post- trial.
According to the proposal, the court's finding on the
reasonableness question requires only an examination of the facts
known at the time of the offer. The court will not use other
facts, including the outcome of the trial, to make a finding on
reasonableness. Thus, the requirements of the draft rule and
Committee Note neither preclude a pre-trial ruling nor require one
post-trial. There are a number of arguments for and against
either pre- or post-trial rulings. However, in both cases the
arguments reveal numerous problems with the proposed rule.

One difficulty with a post-trial ruling is that the time
lapse will bring about problems of recollection and discovery that
will make it harder for the court to determine the
"unreasonableness" of the rejection at the time it occurred. In
addition, judges may well change their views of a case during the
course of the litigation. The facts of Chesny v. Marek. 720 F.2d
474 (7th Cir. 1983), cert, granted. 104, S. Ct. 2149 (1984), 3
clearly reveal the influence that the outcome of a case can have
on a judge's post-trial ruling.

Another example of the influence that the outcome of the

3 The facts of Chesny are set out in the written testimony
submitted by the Alliance for Justice (Jan. 28, 1985), at 37-39.

204

trial may have on a Rule 68 proceeding is the extreme unlikelihood
that an offeror will make a Rule 68 motion if the offeree is
awarded more at trial than the settlement offer. However, a
strict reading of the Committee Note indicates that an offeree may
be sanctioned under Rule 68 even when he or she is awarded more at
trial than the opposing side offered. For example, it may be
possible for a plaintiff, based on the facts known to him or her
at the time of the offer, to unreasonably refuse a settlement
offer, but because of facts later discovered, to be awarded more
at trial than he or she reasonably had expected to receive. If
the outcome of the trial is disregarded and only the facts known
at the time of the Rule 68 offer are examined, such a winning
plaintiff may be sanctioned under the proposed rule.

On the other hand, if the outcome of the trial is used as
evidence in a finding of unreasonableness, there may be
substantial unfairness to the refusing party. That party must
take a chance not only that his or her refusal will be found to be
unreasonable, but also that one of the significant factors
upholding that finding will be something altogether unknowable to
the refusing party, i.e., whether or not he or she will prevail at
trial.

In both situations, there may be some unfairness to the
offeree. In the former, it seems unfair that a plaintiff who is
rightfully awarded more at trial than he or she was offered in
settlement should then be forced to pay the losing defendant's

205

attorney's fees and costs. Moreover, this result is contrary to
the stated intention of the proposal to apply only to claimants
who recover no more at trial than was offered. Despite the fact
that the outcome of a case may indeed be evidence of the
reasonableness of a refusal, it is not evidence that can or should
be used in a proposed Rule 68 determination because of that
potential unfairness. Nevertheless, it is nearly impossible to
believe that, in fact, the outcome and award (if any) will not be
a weighty piece of evidence. Yet, this latter situation may
present hardship to any offeree who even contemplates refusing an
offer; he or she would be taking a large financial risk.

As noted above, a pre-trial ruling may also be possible.
Such a ruling, made shortly after the offer is rejected, has the-
obvious advantage of an immediate determination of sanctionable
behavior. However, in answering a motion based on a rejected Rule
68 offer, the offeree would have to present evidence to justify
his or her refusal. Thus, the offeree would be forced to reveal
confidential work product, including his or her attorney's
assessment of the strengths and weaknesses of the case, pre-trial
strategy, and all of the key facts known to him or her. In other
words, all of the attorney's work and knowledge of the case would
simply be given to the opposing counsel, which is contrary to the
policies that protect against the disclosure of confidential work

206

product. ^

A pre-trial ruling would also require the judge to hold a
mini-trial on all of the factors contained in the draft rule and
Note. Such a mini-trial would add yet another step to the
litigation, and further tax judicial resources. Moreover, there
is a substantial margin for error in a pre-trial ruling.

Finally, the question of the consequences of a pre-trial
ruling remains unanswered. For example, if the court were to find
a refusal to be unreasonable, would the suit be dismissed? Or,
would the offeree be forced to accept the offer? Or, would the
parties still go to trial? Even if the parties can still go
forward to trial, what would be the effect on a losing offeree who
knows that regardless of the outcome on the merits, he will have
to pay the opposing party's costs including attorney's fees? As
these questions reveal, a pre-trial ruling may have a strongly
coercive effect.

Regardless of whether the Advisory Committee envisioned a
pre- or post-trial ruling, the fact that either may be allowed
according to the text of the proposal remains a problem.
Different courts may vary in their interpretation of the rule, and
this may have an impact on the rights of the parties involved in a
Rule 68 proceeding. If different courts were to decide in favor

4 The problem of disclosure of work product material is

discussed infra, pp. 15-20.

207

of each option, similarly situated parties might receive
substantially different treatment. Because of the potential for
unfairness that would result from such an occurrence, this
proposal should not be enacted.

C. Whether a Rule 68 Sanction May Be Imposed on the
Offeree's Attorney Remains a Question.

The Advisory Committee's draft also leaves open the issue of
how a sanction will be imposed, and on whom. When an offeree has
rejected a settlement offer and claims that the rejection was
based on his attorney's advice, it is not clear: whether the
attorney can be brought into the Rule 68 proceeding as a
co-defendant or third party; or, whether the offeree must then sue
the attorney in a separate proceeding, such as a malpractice suit,
claiming his or her advice was so irresponsible as to constitute
malpractice.

If one reads the text of the proposed rule literally, the
sanction may be imposed only on the offeree because only the
offeree, and not the attorney, is named in the rule.5 However,
there is a potential that parties in some cases may be hurt if the
rule is read as exempting the attorney from liability in a Rule 68
proceeding. Take, for example, the case of a client involved in

5 Other Federal Rules of Civil Procedure that authorise
sanctions specifically name who is liable. £££, e.g. . Rules 11,
26(g), and 37(b) (sanctions may be imposed on party, his attorney,
or both) .

208

litigation who knows little or nothing about the legal process
and, relying on the advice of his or her attorney, has refused a
settlement offer. The client's refusal is subsequently found to
be unreasonable in a Rule 68 proceeding, and costs and attorney's
fees are assessed against the client. This party, believing that
his or her attorney's advice was bad, brings a malpractice suit
against his or her attorney only to discover that the standard for
attorney liability in malpractice cases is more stringent than
mere unreasonableness.^ Hence, this litigant, caught between the
strict standards for finding malpractice and the more lenient
standard of unreasonableness, may be unable to recover any part of
the fees assessed against him or her as a result of his or her
reliance on the attorney's advice.

There are also a number of difficulties in allowing the court
to impose sanctions directly on the attorney in a Rule 68
proceeding. One of the problems is that the basis for imposing
sanctions on an attorney who has not engaged in prohibited conduct
is unclear. Since the rule does not name the attorney, a basis
for imposing sanctions on him or her must be sought elsewhere.

6 A lawyer is required to act with the level of. skill and
learning commonly possessed by members of the profession in good
standing. If harm results, the lawyer will be liable for
malpractice if he or she does not possess or has failed to use
that level of skill and learning. However, the lawyer does not
warrant or insure the outcome, and is not liable for a mere honest
error of judgment where the proper course is open to reasonable
doubt. Prosser, Handbook of the Law of Torts 162 (West 4th ed.
1971) .

209

The attorney has not necessarily, for example, signed a pleading
in bad faith (Rule 11), refused to follow a court order to produce
discovery (Rule 37), unreasonably and vexatiously multiplied the
proceeding (28 U.S.C. § 1927), or acted in bad faith. Nor has he
met the judicial standards for assessing attorney's fees directly
against counsel: willful abuse of the judicial process. See
Roadway Express. Inc. v. Piper. 447 U.S. 752, 766 (1980). The
attorney, therefore, has neither violated an objective requirement
similar to those contained in other Federal Rules of Civil
Procedure, nor has he violated the more general standards for
litigation conduct (e.g. bad faith and Section 1927) .

The shortcomings of the proposed Rule 68 lie not only in the
fact that the mechanics of applying the rule have not been
defined, but more importantly, in the fact that serious
difficulties become apparent when the mechanics are considered.
The presence of these unanswered problems is one of the many
reasons why the Alliance for Justice cannot support the proposed
rule.

210

II. The Proposed Rule Will Have a Destructive Effect
on the Attorney-Client Relationship.

The proposal, if enacted, will have a destructive effect on
the attorney-client relationship. The rule will hamper the free
communication between clients and attorneys which is the very
foundation of the relationship. Without such communication and
trust, no attorney can effectively serve his or her clients, and
injustice may result.

A. The Proposed Rule Will Cause Conflict Between
the Interests of Parties and Their Attorneys.

The proposed rule will deter lawyers from representing
parties in litigation, particularly from representing less
affluent clients or parties in public interest litigation. Even
if the lawyer accepts such cases, it will virtually always be in
the best interests of the lawyer to advise settlement because many
clients will not be in a financial position to refuse a settlement
offer if that refusal might be perceived by a court as
unreasonable. Further, it may be in the best interests of the
lawyer to advise settlement because the lawyer may prefer not to
risk personal liability for sanctions, or other possibilities of
conflict with his or her client. 7

7 As discussed supra, pp. 10-12, the standards, if any, for
finding a lawyer personally liable for a Rule 68 sanction are not
clear from the words of the proposed rule. If the rule were

(Footnote continued)

211

Both the attorney and client have an interest in avoiding the
imposition of Rule 68 sanctions. However, the interests of the
lawyer, who may advise settlement in order to avoid the
possibility of personal liability for unreasonableness along with
his client/ may in other ^respects conflict with the interests of
the client. The attorney' may be so unwilling to risk potential
personal liability that he or she may always advise settlement in
response to a Rule 68 offer, rather than weighing whether
settlement is in the client's best interests. These divergent
interests will not only create tension between the attorney and
client, they may also prevent the client from receiving adequate
representation and advice.

Moreover, this type of conflict of interest in an
attorney-client relationship presents potential problems of
professional responsibility for the attorney. The Model Rules of
Professional Conduct require an attorney to advise his client free
from his (the attorney's) own self-interest. Model Rules of
Professional Conduct, Rule 1.8. The attorney is directed to
advise the client "candidly" (Rule 2.1) and the attorney may
"discuss the legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good

7 (continued)

adopted, however, it is almost certain that once parties are held
liable for monetary sanctions under Rule 68, those parties and
their attorneys will be in conflict about whether, or in what
ratio, each will be liable.

212

faith effort to determine the validity, scope, bearing, or
application of the law" (Rule 1.2(d)). The attorney is not
precluded from giving a professional opinion as to what he or she
believes would likely be the ultimate decision of the court. Rule
1.2 Comment. However, Rule 1.2(a) allocates decision making on
the issue of settlement to the client.

Although the client may have to make the decision about
whether or not to accept a settlement offer, that decision may
often be based primarily on the advice the client has received
from the lawyer. The manner in which the lawyer chooses to
present his or her discussion on the settlement issue to the
client may determine how the client perceives his or her chances,
and thus may also determine the client's decision.

As noted above, the imposition of proposed Rule 68 will place
an intense pressure on the lawyer to advise settlement because his
or her advice to the client may come under judicial scrutiny if
and when a subsequent determination of unreasonableness is made.
Because of the potential influence some attorneys may have over
the decisions of their clients, attorneys who are unwilling to
risk personal liability and potential diminution of professional
reputation may be unable to advise clients free from self-
interest. The obvious result will be inadequate representation of
clients whose legal rights are affected.

213

B. The Proposed Rule Will Require the Disclosure
of Confidential Work Product Material.

Proposed Rule 68 will have a tremendous negative impact on
the relationship between attorneys and clients. That the rule
will seriously disturb the attorney-client privilege has been
sufficiently described elsewhere,8 and we will not reexamine that
subject here. However, we will explain in the following pages why
we believe the adoption of the proposed Rule would further weaken
the attorney-client relationship by requiring the disclosure of
confidential work product material.

Litigation on the issue of reasonableness will be inevitable
and vigorously contested because of the considerable financial
incentives. In many cases both parties will make motions under
Rule 68 because the proposal allows sanctions for the unreasonable
refusal of both offers and counteroffers. The court will then
have to make a separate determination of unreasonableness on each
offer's rejection because the standard requires the judge to
consider the relevant circumstances at the time of each offer or
counteroffer. Accordingly, the court will not be able to
mechanically wash out the competing Rule 68 motions but will have
to make full and separate findings on each.

This collateral litigation on the issue of unreasonableness

8 See, e.g.. Association of the Bar of the City of New York,
Comments on Proposed 1984 Amendment to Rule 68 (Jan. 21, 1985) at
5-8.

214

may well involve detailed disclosure of confidential work product
materials because the determination of unreasonableness will
depend on how and why the client made the decision to refuse the
offer. Since that decision is not based on a simple mathematical
addition of the facts, a mere examination by the judge of the
facts known to the attorney and client will not automatically
reveal whether the decision was reasonable.

Rather, a judicial inquiry into this decision not to settle
will require the disclosure of confidential work product (i.e.,
the attorney's opinion on the strong and weak points of the case,
his or her strategies for trial, and opinion on the worth of the
case) because this is the best available evidence. However, an
examination of the private discussions and decisions that are made
in the confidentiality of the attorney" s office defeats the
purpose served by the work product rule. Further, lawyers should
not be placed in the untenable position of knowing that the
rejection of a settlement offer may result in a situation where
they have to give up the confidentiality of their work product in
order to defend against allegations of unreasonableness.

Therefore, in considering the impact of the Rule 68 proposal,

it is important to review the history and scope of the work

product doctrine. As members of the Advisory Committee know,

confidential work product was well defined in Hickman v. Taylor.

329 D.S. 495 (1947). The Supreme Court stated:

In performing his various duties, however, it
is essential that a lawyer work with a certain

215

degree of privacy, free from unnecessary
intrusion by opposing parties and their
counsel. Proper preparation of a client's
case demands that he assemble information,
sift what he considers to be the relevant from
the irrelevant facts, prepare his legal
theories and plan his strategy without undue
and needless interference. That is the
historical and the necessary way in which
lawyers act within the framework of our system
of our jurisprudence to promote justice and
their clients' interests. This work is
reflected, of course, in interviews,
statements, memoranda, correspondence, briefs,
mental impressions, personal beliefs, and
countless other tangible and intangible ways
— aptly though roughly termed by the Circuit
Court of Appeals in this case as the 'work
product of the lawyer.' Were such materials
open to opposing counsel on mere demand, much
of what is now put down in writing would
remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own.
Inefficiency, unfairness, and sharp practices
would inevitably develop in the giving of
legal advice and in the preparation of cases
for trial. The effect on the legal profession
would be demoralizing. And the interests of
the clients and the cause of justice would be
poorly served.

1*5. at 510-11. If the proposed Rule 68 were adopted, it is likely
that many of the Supreme Court's concerns would be realized. In
any proposed Rule 68 proceeding, because of the difficulties of
determining what relief a claimant could have reasonably expected
at the time the offer was rejected, contemporaneous analysis of
the situation would be given the greatest weight. But that
contemporaneous analysis would rely heavily on confidential work
product, the disclosure of which would create all of the problems
enumerated in Hickman.

216

The confidentiality of work product is qualified, not
absolute. United States v. Nobles. 422 U.S. 225 (1975)
(protection of work product limited to only pre-trial discovery;
protection can be waived). Further, Hickman was codified by
Federal Rule of Civil Procedure 26(b)(3), governing general
discovery provisions. That rule permits the discovery of work
product material where there is a showing of substantial need and
the unavailability of materials through alternative means without
undue hardship. Under these Rule 26(b)(3) provisions, it seems
likely that in a Rule 68 proceeding the offeror would be able to
obtain production of the work product of the offeree's attorney;
hence, the concerns voiced by the Supreme Court in Hickman are
likely to be realized. Attorneys would, for example, be wary of
creating and keeping written records assessing strengths and
weaknesses in their case and evaluating settlement offers because
of the potential discoverability of such documents in a subsequent
Rule 68 proceeding. 9

9 The issue of wiiether confidential work product is
discoverable in a later case or proceeding has been the subject of
a number of decisions. Commentary on the issue states:

Some decisions seem to stand for the
proposition that the work product immunity
applies only to documents prepared in direct
relation to the case at bar and that documents
prepared for one case, though they would be
protected in that case, are freely
discoverable in a different case. The sounder
view appears to be that of other decisions in
which it is held that documents prepared for
(Footnote continued)

217

Hence, Proposed Rule 68 may be an obstacle to a lawyer's
detailed communication with his or her client. Parties involved
in complex and important litigation and settlement negotiations
deserve the best advice and representation possible from their
lawyers. If a lawyer's ability to provide that representation is
hampered, clients will not get zealous and effective
representation.

III. Provisions to Regulate the Conduct of Litigation
Which Already Exist Obviate Any Need for the
Proposed Amendments to Rule 68.

The Alliance for Justice submits that to the extent that
there is a need to sanction parties and attorneys who abuse or

9 (continued)
• one case have the same protection in a second
case, at least if the two cases are closely
related.

C. Wright & A. Miller, Federal Practice and Procedure, § 2024
(1970) at 200-01. A few cases hold that work product is never
discoverable, even at a later date. £££, e.g.. Duplan Cocp. V.
Moulinaqe et Retordie de Charanoz. 509 .P. 2d 730 (4th Cir. 1974),
cert, denied. 420 U.S. 997 (1975). In that case, the court
interpreted the language of Rule 26(b)(3), "the court shall
protect against disclosure [of confidential work product]" to mean
that no showing of relevance, substantial need, or hardship will
justify disclosure, reasoning that if disclosure were allowed our
adversary system would suffer. Id. at 734-735. Thus it is not
even clear whether the work product of the offeree's attorney
would be discoverable in a Rule 68 proceeding. And yet, that
evidence, because it would be contemporaneous, would undoubtably
be the best evidence available to prove the reasonableness of a
refusal.

218

interfere with the judicial process, such sanctions already exist
and are already being used by the courts. Further, these
sanctions are available to punish both specific abuses of process
during civil litigation, as well as general violations of good
faith and other duties owed by parties and their attorneys during
the litigative process. All of the other sanctioning rules,
however, have standards of culpability that are aimed at more
egregious conduct than the unreasonableness standard of the
proposed Rule 68. Furthermore, those that address abuses of one
aspect of the civil litigation process, as the proposal does, are
based on objective standards rather than the type of subjective
standard in this proposal.10 as the NAACP Legal Defense Fund
pointed out in its testimony, the settlement process is not
amenable to control by sanctions because it is a subjective rather
than objective process. H In this section, some of the other
sanctions available under existing rules will be examined, and
they will be compared with the proposal to amend Rule 68.

10 The terms "subjective" and "objective" are used here not as
legal terms of art, but rather according to their common usage.
Objective is defined as "having actual existence or reality;
uninfluenced by emotion, surmise, or personal prejudice."
Subjective is defined as "proceeding from or taking place within
an individual's mind such as to be unaffected by the external
world; particular to a given individual; personal." American
Heritage Dictionary. American Heritage Publishing Co., Inc. and
Houghton Mifflin Co. (1969).

11 NAACP Legal Defense and Educational Fund, Inc., Comments
Regarding Proposed Amendments to Rule 68 of the Federal Rules of
Civil Procedure (Jan. 29, 1985) at 9-15.

219

Sanctions for Bad Faith Conduct

Although the traditional American rule ordinarily disallows
awarding attorney's fees as a sanction unless there is a statutory
authorization, federal courts may impose sanctions, including
costs and attorney's fees, in exceptional circumstances. In cases
where a party has litigated in bad faith, a award of attorney's
fees is generally permitted under a long established exception to
the American rule. See generally Hall v. Cole. 412 U.S. 1, 4-5
(1973). The bad faith exception allows the court to impose
attorney's fees on the non- prevailing party when he has acted "in
bad faith, vexatiously, wantonly, or for oppressive reasons." 6
J. Moore, Moore's Federal Practice, § 54.77 at 1709 (2d ed. 1972).
This sanction may be imposed against both parties and counsel.
Nevertheless, n[t]hat rule must be applied with caution to make
sure that plaintiffs are not deterred from suing to enforce their
rights.... At the same time, the rule must be applied in
appropriate cases to spare members of the public from the expense
of defending against baseless allegations." Nemeroff v. Abelson.
704 F.2d 652, 654 (2d Cir. 1983). Thus, the strict and well-known
standard which requires a showing of bad faith must be met before
a court may sanction parties with the imposition of costs and
attorney's fees. Since this may be done at any stage of the
litigation, if a party were to refuse a settlement offer in bad

220

faith, he or she may be sanctioned by a court according to this
rule.

28 D.S.C. Section 1927

Furthermore, courts are authorized to hold counsel personally
liable for sanctions consisting of excessive costs and fees under
28 U.S.C. § 1927. Section 1927 states, "any attorney who
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys' fees reasonably incurred
because of such conduct."

Although the language of the rule contains no requirement of
bad faith, the legislative history of the recent amendments to
§ 1927 makes it clear that Congress intended the standard for
triggering sanctions to remain quite high.^2 Congress based its
determination to retain the bad faith standard on its concern that
a lower standard might "dampen the legitimate zeal of an attorney
in representing his client. "13 These concerns may apply equally
to the Rule 68 proposal. The proposal's lower standard of

12 In 1980, Section 1927 was amended to include attorney's fees
in the catagory of excess costs. For the Congressional discussion
of retaining a high standard see H.R. Rep. No. 123 4, 96th Cong.,
2d Sess. 8 (Conference Report), reprinted in 1980 U.S. Code Cong.

& Ad. News 2781, 2782 [hereinafter cited as Conference Report].

13 Conference Report, supra n.12 at 8.

221

unreasonableness is so broad that an attorney and his or her
client will lose the freedom of choice to direct their side of the
litigation. Instead, their decisions about settlement will be
constrained by the low and unworkable standard of
unreasonableness.

Judicial interpretations of Section 1927 have been numerous
and varied. Some courts have required a specific finding of
subjective bad faith in order to impose § 1927 sanctions. Suslick
v. Rothschild Securities Corp.. 741 F.2d 1000 (7th Cir. 1984).
Badillo v. Central Steel & Wire Co.. 717 F.2d 1160 (7th Cir.
1983) . Other courts have included bad faith as one of the
standards that will result in the imposition of sanctions under
S 1927. Lone Ranger Television. Inc. v. Program Radio Corp.. 740
F.2d 718 (9th Cir. 1984) (sanction imposed on finding that counsel
acted in bad faith and unreasonably multiplied proceedings);
United States v. Bledaett. 709 F.2d 608 (9th Cir. 1983) (finding
that counsel acted recklessly or in bad faith required) ; Barnd v.
Tacoma. supra, 664 F.2d 1339 (authority to impose sanctions
against attorney who intentionally, recklessly, or in bad faith
multiplies proceedings unreasonably and vexatiously) . Finally,
many other courts have not discussed bad faith at all, but have
relied on the words of the statute to provide the standard. .Cheng.
v. GAF Corp. . 713 F.2d 886 (2d Cir. 1983) (unreasonably multiply
proceedings); Lewis v. Brown & Root. Inc.. 711 F.2d 1287 (5th Cir.
1983), cert, denied. 104 S. Ct. 975 (1984) (needlessly and

48-930 0—85 8

222

vexatiously) ; Knorr Brake Corp. v. Harbil. Inc.. 738 F.2d 223 (7th
Cir. 1984) (finding that attorney filed or prosecuted claim
lacking any plausible legal or factual basis required) ; Qvernite
Transportation Co. v. Chicago Industrial Tire Co.. 697 F.2d 789
(7th Cir. 1983) (multiplying or delaying ongoing litigation);
Malhiot v. Southern California Retail Clerks Union. 735 F.2d 1133
(9th Cir. 1984) (fees assessed because of frivolous appeal, and
many misrepresentations of the record and intentional misstatement
of controlling law contained in briefs) .

Section 1927 also imposes some procedural requirements on the
court before sanctions may be imposed. For example, Section 1927
requires that the attorney be given notice and the opportunity to
be heard. Conference Report, susza n.12, at 8; see also Knorr
Brake Corp. v. Harbil. Inc.. \auExa, 738 F.2d 223; Barnd y. TaCQma,
supra. 664 F.2d 1339. These procedural requirements are in place
to ensure that the rights of the sanctioned parties are protected.
The proposal to amend Rule 68 contains no such requirements, and
therefore, no such guarantees that the rights of parties
potentially liable. for Rule 68 sanctions' will be protected.

Finally, Section 1927 is currently available to punish
attorneys who "unreasonably and vexatiously" multiply any part of
the litigative proceedings. Therefore, if an attorney's
misconduct in refusing a settlement offer reaches this standard he
or she may be sanctioned under § 1927 .

223

The common law bad faith doctrine and Section 1927 are
general provisions available to the courts to sanction misconduct
at any stage of the litigative process. If in refusing a
settlement offer, a party, his attorney, or both act in such a way
that their conduct violates these "bad faith" standards, the court
has penalties available. In 1980 Congress was presented with the
opportunity to lower the standard for measuring misconduct, but
specifically and deliberately declined to do so.14 Thus the
question remains whether it is appropriate for the Advisory
Committee to so radically lower the standard for sanctioning
misconduct during the settlement process.15

Federal Rules of Civil Procedure

In the Federal Rules of Civil Procedure, Rules 11, 26(g), and
37(b) and (d) , inter alia, contain provisions granting the courts
authority to sanction parties, their attorneys, or both, for
certain types of misconduct. Rule 37 authorizes the imposition of
sanctions against parties who abuse the discovery process by
refusing to disclose information.16 The imposition of sanctions

14 See text accompanying nn. 12 & 13, .shells.

15 The question of whether the Rules Enabling Act permits the
Advisory Committee to so alter the standard was discussed in the
Alliance's oral and written testimony (.sjicra. n.l) .

16 Rule 37(b)(2) provides, in pertinent part, that in lieu of or

(Footnote continued)

224

against parties who refuse to comply with a court order to produce
discovery is mandatory, "unless the court finds that the
opposition to the motion was substantially justified or that other
circumstances make an award of expenses unjust." £&£ Rule 37(b)
and (d) . At least one court has held that because the sanction is
mandatory, a specific finding of bad faith is not required.
Merritt v. International Brotherhood of Boilermakers, 649 F.2d
1013 (5th Cir. 1981) . Despite this holding, however, that court
found that bad faith could be inferred from the facts, id. at
1019, n.14.

Other courts, however, have made express findings of bad
faith when imposing the sanctions of Rule 37 (Litton Systems. Inc.

16 (continued)

addition to other listed sanctions:

[T]he court shall require the party failing
to obey the order or the attorney advising
him or both to pay the reasonable expenses,
including attorney's fees, caused by the
failure, unless the court finds that the
failure was substantially justified or that
other circumstances make an award of expenses
unjust.

Rule 37(d) using substantially the same language provides:

In lieu of any order or in addition
thereto, the court shall require the
party failing to act or the attorney
advising him or both to pay the
reasonable expenses, including attorney's
fees, caused by the failure, unless the
court finds that the failure was substantially
justified or that other circumstances make an
award of expenses unjust.

225

v. American Telephone and Telegraph Co.. 700 F.2d 785 (2d Cir.
1983), cert, denied. 104 S. Ct. 984 (1984)), and have held that a
finding of bad faith may warrant the extreme sanction of dismissal
(National Hockey League v. Metropolitan Hockey Club. Inc.. 427
U.S. 639 (1976) (plaintiff's failure to timely answer written
interrogatories as ordered by the district court resulted in
dismissal because of flagrant bad faith and counsels' callous
disregard of their responsibilities)). The party who moves to
compel discovery can also be sanctioned if the motion is not
substantially justified. Rule 37(a)(4); c_f. Reyqo Pacific Corp.
v. Johnston Pump Co.. 680 F.2d 647 (9th Cir. 1982) (fees will not
be assessed against party requesting discovery if reasonable
people could differ on whether compliance with the discovery
request is required) .

Both parties and their attorneys are subject to the
imposition of Rule 37 sanctions. Indeed, since attorneys rather
than parties often control the discovery process (e.g. attorneys
answer interrogatories, take depositions, etc.) it seems not
unusual to impose the sanctions only on the attorneys. See, e.g. .
Guidry v. Continental Oil Co.. 640 F.2d 523 (5th Cir. 1981), cert.
dfinifid, 454 U.S. bl8 (1981); Liew v. Breen. 640 F.2d 1046 (9th
Cir. 1981) ; Merritt v. International Brotherhood of Boilermakers.
£U£ta» 649 F.2d 1013 (both parties and attorneys are liable absent
indication that attorneys were acting outside scope of their
authority) .

226

Rule 26 also governs conduct during the discovery process.
The rule was amended in 1983 to include new requirements for
signing discovery requests and responses. 1? Courts and
commentators are still interpreting the way in which the
amendments will be applied to discovery problems.

Rule 11 is another example of a rule which allows the court

17 Rule 26 reads, in pertinent part:

Every request for discovery or response or
objection thereto made by a party
represented by an attorney shall be signed by
at least one attorney of record in his
individual name, whose address shall be
stated.... The signature of the
attorney or party constitutes a certification
that he has read the request, response, or
objection, and that to the best of his knowledge,
information, and belief formed after a reasonable
inquiry it is: (1) consistent with these rules
and warranted by existing law or a good faith
argument for the extension, modification, or
reversal of existing law; (2) not interposed for
any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in
the cost of litigation; and (3) not unreasonable
or unduly burdensome or expensive, given the
needs of the case, the discovery already had in
the case, the amount in controversy, and the
importance of the issues at stake in the
litigation. . . .

If a certification is made in violation of the rule,
the court, upon motion or upon its own initiative,
shall impose upon the person who made the certifi-
cation, the party on whose behalf the request,
response, or objection is made, or both, an
appropriate sanction, which may include an order
to pay the amount of the reasonable expenses
incurred because of the violation, including a
reasonable attorney's fee.

227

to impose sanctions to penalize those who engage in misconduct
during a particular phase of the litigative process. Rule 11
requires those who submit pleadings or motions to have a
reasonable basis for believing that their filings are well
grounded in fact or law.18 The Advisory Committee amended Rule 11
in 1983 because it believed that there was considerable confusion
among both courts and attorneys about the rule's application,
making the rule ineffective in deterring abuses. In enacting the
proposed changes, the Committee stated its intention to "build
upon and expand the equitable doctrine" wherein courts are

18 Fed. R. Civ. P. 11 provides:

Every pleading, motion, and other paper of
a party represented by an attorney shall be
signed by at least one attorney of record
in his individual name, whose address shall
be stated.... The signature of an attorney or
party constitutes a certificate by him that
he has read the pleading, motion, or other
paper; that to the best of his knowledge,
information, and belief formed after
reasonable inquiry it is well grounded in fact
and is warranted by existing law, and that it
is not interposed for any improper purpose,
such as to harass or to cause unnecessary
delay or needless increase in the cost of
litigation.... If a pleading, motion, or
other paper is signed in violation of this
rule, the court, upon motion or upon its own
initiative, shall impose upon the person who
signed it, a represented party, or both, an
appropriate sanction, which may include an
order to pay to the other party or parties
the amount of the reasonable expenses
incurred because of the filing of the
pleading, motion, or other paper, including a
reasonable attorney's fee.

228

permitted to award costs and attorney's fees to a party who has
been forced to defend against litigation brought or maintained in
bad faith. Advisory Committee Note, reprinted in 28 U.S.C.A. Fed.
R. Civ. P. 11 (West Supp. 1983). Again, the sanctions may be
imposed on either a party or the attorney. Historically, courts
have construed Rule 11 as requiring a finding of subjective bad
faith in order to assess fees. Suslick v. Rothschild Securities
Corp. . sjtp_r_a., 741 F.2d 1000; Gierinoer v. Silverman. 731 F.2d
1272, 1281, 1282 (7th Cir. 1984) (willful violation of the rule or
subjective bad faith required); Badillo v. Central Steel & Wire
Co. . sjipjia, 717 F.2d 1160, 1167.

The sanctions for bad faith and in Section 1927 are
distinguishable from those contained in the Federal Rules of Civil
Procedure because they are generally available to punish the
misconduct of the parties. Unlike the Federal Rules of Civil
Procedure sanctions, which can be imposed only when one of the
parties has abused a particular phase of the litigative process,
Section 1927 and the bad faith doctrine allow sanctions for
misconduct that occurs at any time during the litigation. Despite
their general availability however, the standards of bad faith and
Section 1927 are not substantially higher than those of Rules 11
and 37 .

229

Proposed Rule 68

Furthermore, the sanctions provisions contained in the
Federal Rules of Civil Procedure are more carefully crafted than
the Rule 68 proposal. It is this attention to detail that helps
to make such rules workable and effective in achieving tneir
various goals. Although details of this type could be added to
the Rule 68 proposal, that would not necessarily make it effective
in achieving its goals. The proposal appears to lack the higher
standards and procedural requirements in part because the
settlement process is simply too subjective to be amenable to such
regulation.

To allow the standards for sanctioning to be lowered in Rule
68 may result in a change that gives one party, the offeror, an
unreasonable advantage over the offeree. While the offeror will
be held to the good faith standard in making the offer (according
to the Committee Note) , the offeree will not have the protection
of that standard, or even a standard that approaches bad faith,
when choosing to accept or reject that offer. The offeree will
have to overcome the lower, and therefore much harder to disprove,
standard of mere reasonableness. The disadvantages of having to
overcome this standard will strongly discourage offerees from ever
rejecting an offer, even when they have meritorious claims that
are worth more than the proposed settlement offer.

As explained above, any need for the proposed Rule 68 is
obviated because the bad faith doctrine and Section 1927 already

230

provide general authority for sanctioning misconduct. Moreover,
the sanctions available currently under the Federal Rules of Civil
Procedure may eliminate many of the sources for delay in specific
stages of the litigative process. Since a number of these rules
have only recently been amended, the Alliance for Justice takes
the position that, until the effects of these amendments are
known, no new and radical sanctions should be added to Rule 68.

CONCLUSION

The Advisory Committee assumes, perhaps erroneously, that a
settlement is always preferable to a litigated outcome, and
therefore, that settlement incentives or trial disincentives are
generally appropriate. In making this assumption, the proposal
ignores the fact that some litigation is critical because of the
principles involved. In such cases, the harm that gave rise to
the plaintiff's claim may be such that the plaintiff is unwilling
to quietly accept some money as his only remedy for the damage.
Rather, the plaintiff may seek public exoneration as well as
financial redress. For example, a plaintiff's ability to pursue
his chosen career may have been threatened by an illegal action,
e.g., he may have been fired because of racial discrimination on
the part of his employer. For these plaintiffs, settlement may
not always be an acceptable alternative to a trial.

Members of the Advisory Committee acknowledged the existence

231

of such suits — where the plaintiff's principles outweigh mere
financial considerations — during the February 1, 1985 hearing on
the 1984 Proposal to amend Rule 68. However, no mention or
acknowledgement of the fact that settlements may not always be the
preferred disposition of cases on the federal docket is made in
either the proposed text of the rule or in the Committee Note.
Nor is any allowance made for parties who prefer a judicial
determination on the merits of their case, not simply because the
parties cannot agree among themselves on the worth of the case,
but because they have something more at stake than financial loss.
Many of these cases involving important principles or requests for
non-monetary relief may not be among the "test cases" envisioned
by the Advisory Committee,19 because there may be no novel or
far-reaching question of law at issue. Few parties will be able
to refuse a settlement offer and risk the imposition of costly
sanctions, regardless of the kind of suit, because of the broad
and indeterminate nature of the standard of unreasonableness.

For all of the foregoing reasons, the Alliance for Justice
submits that the Advisory Committee should withdraw its proposal
to amend Rule 68.

19 The proposed rule directs judges to consider certain factors,
including whether the case is a "test case," in their
determination of the unreasonableness of a rejection. See supra,
p. 3 for the list of those factors.

232

BY HAND DELIVERY
June 5, 1985

The Honorable Robert W. Kastenraeier, Chairman
Subcommittee on Courts, Civil Liberties, and

the Administration of Justice
United States House of Representatives
Room 2137B, Rayburn House Office Building
Washington, D.C.

ESJ "Rules Enabling Act of 1985' (H.R. 2633)

Dear Representative Kastenmeier :

. We would like to commend the Subcommittee for taking an
interest in reforming the statutory delegation of rulemaking
authority. We appreciate the Subcommittee's sustained interest in
this important subject. unfortunately, we do not believe that
H.R. 2633, as currently drafted, addresses the most fundamental
problems in the current structure of the rulemaking system.

The second proposal pending is to amend Rule 9 of the Rules
Governing Section 2254 and 2255 Proceedings in the United States
District Courts. If adopted, this proposal would dramatically

233

Page Two

Each of these proposals is of very doubtful merit, and both
are highly inappropriate for judicial rulemaking. Each of the
proposals was first advanced by an advisory committee in 1983, and
each was severely criticized at hearings in early 1984.
Nevertheless, each was re-published for further consideration in a
revised form in 1984 — and once again each has encountered
substantial criticism at hearings held -in early 1985. The Chief
Justice has nevertheless continued, both publicly and privately,
to urge the adoption of the two proposals. In fact, the proposal
to amend Rule 9 was developed directly after the Chief Justice
failed to persuade his colleagues on the Court to make a similar
change in the law via case adjudication. Compare Aiken v.
Spaulding. 684 F.2d 632 (9th Cir. 1982), cert, denied. 103 S. Ct.
1795 (1983) with 1983 Proposal and Advisory Committee Note
(reprinted at 98 F.R.D. 337 (1983)) and 1984 Proposal and Advisory
Committee Note (reprinted at 102 F.R.D. 407 (1984)). We have also
learned that the Chief Justice has written directly to members of
the Advisory Committee asking them to support the proposal for
changes in the habeas rules.

Federal Habeas Corpus Rules; A Case Study on the Need for Reform

of the Rules Enabling Acts, 63 Iowa L. Rev. 15 (1977)), as did the
proposed Federal Rules of Evidence (see Pub. L. No. 93-595
(1975)). There seems to be a continuing pressure at the Judicial
Conference and the Court to expand "procedural" rulemaking into
areas which involve or affect substantive rights, and we have
found no signs of any institutional effort to curb this tendency.

234

Page Three

Therefore, while we agree completely that reforms are needed
in this process (and appreciate the Subcommittee' s interest in
making them), we believe that H.R. 2633 omits several of the most
important, and most fundamental, reforms. One of the most basic
problems with the current rulemaking process is that there is no
adequate system of checks and balances to ensure that the Supreme
Court and the committees of the Judicial Conference confine their
rulemaking to the scope of the congressional delegation. The
Supreme Court promulgates the rules, and the Supreme Court reviews
them if they are challenged. This system contrasts sharply with
other rulemaking processes. Rulemaking by executive branch or
independent agencies can be "checked" by two other branches of
government: by Congress if it is dissatisfied with the agency's
exercise of its delegated authority and by an independent
judiciary. Federal judicial rulemaking, however, is subject only
to a limited Congressional check during the "layover" period
(during which Congress must pass affirmative legislation and
secure a presidential signature to delay or revise any rules
proposal other than one affecting evidentiary privileges) , and it
is not controlled by any other branch or governmental entity. In
fact, several justices of the Supreme Court have previously
objected to their role in the promulgation of the rules on the
grounds that they were required to precommit on issues that would
later come before them for review. 2s&, e.g. . Order, 323 O.S.
821, 822 (1944) (memorandum of Justice Frankfurter). Commentators
also have observed that because of this dual role in its decisions
reviewing rulemaking the Court's objectivity has been compromised;
the Court's opinions in Sibbach v. Wilson & Co. f 312 D.S. 1 (1941)
and Hanna v. Plummer. 380 U.S. 460 (1965) have been cited as
examples of this problem. For these reasons, and in light of our
recent experiences with Rule 68 and Rule 9, we do not think
legislation such as H.R. 2633 which retains the Supreme Court in
its present rulemaking role will produce effective and meaningful
reform in this process.

In addition to our general concern about the statute, we have
the following specific comments about points contained within or
pertinent to H.R. 2633:

2. We also applaud the provisions of section 2073(d) which
require the rulemaking body making a recommendation to provide a

235

Page Four

Rules Enabling Act: Hearings. Before the Subcommittee on Courts.

3. H. R. 2633 continues the present practice of allowing the
Chief Justice to appoint all of the members of the advisory
committees and the Standing Committee. Your earlier bill, H.R.
4144, would have provided for the Judicial Conference, not the
Chief Justice, to make these appointments. In this and several
other respects, the earlier bill made the types of improvements
that many commentators had urged. Recent history, and in
particular the developments with respect to the proposed amendment
to Rule 9 in the habeas corpus area, furnishes illustration of the
need to redistribute responsibility for various aspects of the
rulemaking structure and process.

5. Section 2072(c)(1) of the bill, which provides for more
open meetings, is problematic insofar as: (a) it allows for the
closing of a meeting simply upon a determination by committee
members (who have testified that they much prefer deliberating in
private, .£££ Hearings at 11, 18-19, 91, 100-102) that it is "in
the public interest" to close meetings, and (b) the "legislative
history" to date on this provision of the bill (contained in the
sect ion- by- sect ion analysis of H.R. 6344) is very ambiguous (see
Hearings at 174-76) . As you know, the Sunshine in Government Act
provisions under which many other agencies operate contain far
more exacting openness requirements. At a minimum, we urge that
provisions be included in this legislation requiring the committee
members to give specific reasons for voting to close meetings to
the public, and that the legislation include a presumption in
favor of open meetings.

6. We also suggest that* to assure informed congressional
consideration during the "layover" period, the full minutes of any

236

Page Five

meetings that are closed by committee vote be maintained and made
available to the House and Senate Judiciary Committees when the
pertinent rules proposals are forwarded.

8. We are opposed to the inclusion of the sentence in
Section 2074(a) of the bill which allows the Supreme Court to "fix
the extent [to which] such [newly promulgated] rule[s] shall apply
to proceedings then pending." There will be circumstances in
which it would be particularly unfair to apply newly developed
rules to litigants in pending cases (who had proceeded in reliance
upon the earlier set of rules) . For a number of years the
rulemakers have included provisions in Federal Rule of Civil
Procedure 86 (or in the orders accompanying the rules) instructing
that once rules take effect:

They govern all proceedings in actions
brought after they take effect and also
all further proceedings in actions then
pending, except to the extent that in the
gpjpion of the court their application in
a particular action pending when the
amendments take effect would not be
feasible or would work injustice, in which
event the former procedure applies.
(Emphasis supplied.)

10. Section 3 of the bill, which provides for the Judicial
Conference to periodically review local rules, should include a
minimum time period for that review, such as every two years.

11. Commentators have repeatedly criticized the fact that
neither the Supreme Court nor any of the Judicial Conference
committees has developed a set of guidelines delineating what they

Page Six

237

believe to be the scope of their authority to promulgate
procedural (but not substantive) rules. See Burbank, The Rules
Enabling Act, 130 U. Penn. L. Rev. 1015, 1194-97 (1982). The bill
should include a specific requirement that the Judicial Conference
develop such a set of internal controls, and furnish a copy to
Congress.

Sincerely,

Nan Aron

Alliance for Justice

Laura Kacklin

Institute for Public Representation

^aniaith Resnick
Dennis E. Curtis
William Genego

University of Southern California
Law School

LM/ntl

Copies: Subcommittee Members

238

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, DC. 20544

CHAIRMEN OF ADVISORY COMMITTEES
EDWARD T GIGNOUX PIERCE LIVELY

CHAIRMAN _ .. .. iQQC ARRELLATE RULES

July 11, 1985 FRANK M JOHNSON. JR

CIVIL RULES

JOSEPH F SPANIOL. JR FREDERICK B LACEY

SECRETARV CRIMINAL RULES

MOREY L SEAR

BANKRUPTCY RULES

Honorable Robert V. Kastenmeier

Chairman, Subcommittee on Courts, Civil Liberties

and the Administration of Justice
Committee on the Judiciary
United States House of Representatives
2232 Rayburn House Office Building
Washington, D.C. 20515

Dear Mr. Chairman:

1 am pleased to submit a Prepared Statement setting forth my views,
as Chairman of the Judicial Conference Standing Committee on the Rule?
of Practice and Procedure, on the provisions of H.R. 2633, the "Rules
Enabling Act of 1985," the bill introduced by you on May 23, 1985, to
amend the Rules Enabling Acts. I appreciate your courtesy in permitting
me to submit these written comments, and regret that 1 was unable to
appear and testify in person at the hearing conducted by the
Subcommittee on June 6, 1985.

H.R. 2633 is the second revision of H.R. 4144, 98th Congress, 1st
Session, the original bill introduced by you on October 18, 1983. At
the hearing conducted by the Subcommittee on March 1, 1984, I was
privileged to present the views of the Judicial Conference, which
endorsed those of the Standing Committee, on H.R. 4144. To the extent
that H.R. 2633 carries forward the provisions of H.R. 4144, the views of
the Conference are already in the hearing record. Neither the Standing
Committee nor the Judicial Conference has had an opportunity, however,
to review the new bill and to formulate views concerning it.
Accordingly, the enclosed Statement sets forth my own views, and not
those of the Standing Committee or the Conference, on those provisions
of the present bill which differ from the original bill.

At the outset, may I commend the Subcommittee on its continuing
interest in perfecting the federal rulemaking process. In my view, H.R.
2633 is a substantial improvement over the earlier drafts, and I am
pleased to note that it incorporates many of the suggestions made on
behalf of the Conference at the previous hearing. As more fully set
forth in my Statement, however, H.R. 2633 contains several provisions
that I find disturbing:

(1) H.R. 2633 does not include the provision in the current Rules
Enabling Acts permitting judicially promulgated rules to
supersede conflicting procedural statutes. I am concerned

239

Honorable Robert W. Kastenraeier
Page Two

that the elimination of this supersession authority could lead
to fruitless satellite litigation challenging the validity of
a rule solely because it arguably may conflict with some
obscure procedural statute.

(2) Proposed Section 2072(b) of Title 28 would provide that "Such
rules shall not ... supersede any provision of a law of the
United States." It seems to me that every rule of procedure,
when effective, becomes "a law of the United States," whether
promulgated by the Supreme Court or enacted by Congress.
Thus, any proposed amendment to an existing rule would appear
to be a change in "a law of the United States," and the
Supreme Court would be powerless to act. This new provision
could effectively destroy the rulemaking process as we know it
today. »

(3) Proposed Section 2074(a) of Title 28 would require that the
Supreme Court transmit with a proposed rule proposed
amendments to any law "to the extent such amendments are
necessary to implement such proposed rule ...." This
provision presumably would require the Court to render an
advisory opinion as to whether a proposed rule conflicts with
an existing statute. Under Article III of the Constitution,
the Supreme Court cannot, of course, render advisory opinions.

(4) H.R. 2633 would require open committee meetings. As I
previously testified, the Judicial Conference and the Standing
Committee are of the view that this "sunshine" proposal is
unnecessary and would seriously impair the efficient
functioning of the rulemaking process, without any significant
public benefit. We believe that our present procedures, as
codified in the "Statement of Operating Procedures" adopted by
the Standing Committee and approved by the Conference,
adequately achieve the objective of full public awareness and
participation in rulemaking.

My Statement contains a number of other comments and suggestions,
which I hope may be helpful. Again, I appreciate the opportunity to
submit my views on this important bill.

S-tnrprply-r

Edward T. Gignoux \ \ T <

240

PREPARED STATEMENT

HONORABLE EDWARD THAXTER GIGNOUX

UNITED STATES SENIOR DISTRICT JUDGE
FOR THE DISTRICT OF MAINE

and

CHAIRMAN OF THE STANDING COMMITTEE
ON RULES OF PRACTICE AND PROCEDURE

OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES

before the

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND
THE ADMINISTRATION OF JUSTICE
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES

H.R. 2633,
A BILL TO AMEND THE RULES ENABLING ACTS

July 10, 1985

241

Mr. Chairman, and Members of the Subcommittee, I submit this
Prepared Statement in response to Chairman Rodino's request for my
views, as chairman of the Judicial Conference Standing Committee on
Rules of Practice and Procedure, on the provisions of H.R. 2633, the
"Rules Enabling Act of 1985," a bill introduced by you, Mr. Chairman, on
May 23, 1985, to amend the provisions of Titles 18 and 28 of the United
States Code, commonly called the Rules Enabling Acts. I appreciate your
courtesy in permitting me to submit these written comments, and regret
that time constraints made it impossible for me to appear and testify in
person at the hearing conducted by the Subcommittee on June 6, 1985.

INTRODUCTION

H.R. 2633 is substantially similar to the measure approved by the
Subcommittee last Congress, H.R. 6344, 98th Congress, 2nd Session, and
introduced by the Chairman on October 1, 1984. H.R. 6344, in turn, was
a revision of H.R. 4144, 98th Congress, 1st Session, the original bill
introduced by the Chairman on October 18, 1983. As stated by you, Mr.
Chairman, in your remarks when introducing H.R. 2633, this bill is the
product of two days of hearings at the last Congress and a substantial
amount of work by the Subcommittee. See Rules Enabling Act, Hearings
before the Subcommittee on Courts, Civil Liberties, and the
Administration of Justice of the Committee on the Judiciary, House of
Representatives, 98th Congress, 1st and 2nd sessions (April 21, 1983,
and March 1, 1984), Serial #96 (1985) (hereinafter "Hearings"). I
commend the Subcommittee on its continuing interest in perfecting the
Federal rulemaking process.

At the hearing conducted by the Subcommittee on March 1, 1984 I was
privileged to submit the views of the Judicial Conference, which had

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endorsed those of Che Standing Committee, on H.R. 4144, 98th Congress.
See Hearings at 88 (Testimony), at 93 (Statement). I am pleased to note
that the present bill incorporates many of the views expressed on behalf
of the Judicial Conference at the previous hearing.

To the extent that H.R. 2633 carries forward provisions of H.R.
4144, 98th Congress, the views of the Judicial Conference are already in
the hearing record, and I shall attempt to avoid repeating them at this
time. Neither the Judicial Conference nor the Standing Committee has
had an opportunity, however, to formulate final views on the present
bill. Since H.R. 2633 modifies H.R. 4144, 98th Congress, in several
significant respects, in commenting thereon, I am necessarily presenting
my own views and not those of the Judicial Conference or the Standing
Committee.

COMMENTS

My comments with respect to the provisions of H.R. 2633 are as
follows:

SECTION 1. SHORT TITLE

I have no comment.

SEC. 2. RULES ENABLING ACT AMENDMENTS
SEC. 2(a) IN GENERAL.

Section 2(a) of H.R. 2633 (with Section 5(a) and (b)) would repeal
the present Rules Enabling Acts, 28 U.S. C, Sections 2072, 2075, 2076,
18 U.S.C. Sections 3771, 3772 (chapter 237) and 18 U.S.C. Section 3402
(second paragraph), and would consolidate all rules enabling provisions
into new Sections 2072, 2073, and 2074 of Title 28.
Proposed Section 2072. Rules of procedure; power to prescribe

Proposed Section 2072 contains two subsections:

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Section 2072(a) would vest the rulemaking authority in the Supreme
Court, as at present. I support this provision. The original bill,
H.R. 4144, 98th Congress, would have transferred the rulemaking
authority from the Supreme Court to the Judicial Conference. I
understand that the current provision responds to the concern expressed
by the Conference of State Chief Justices that the prestige and
authority of the Court are important to acceptance of the rules, not
only within the Federal judicial system but by the many States which
have adopted the Federal Rules of Procedure, either in whole or in part.
See Letter to the Honorable Robert W. Kastenmeier from the Honorable
John A. Speziale, Chairman, Committee on State-Federal Relations,
Conference of Chief Justices, dated March 6, 1984, Hearings at 231. I
further understand that the Justices have concluded that it would be
better that the rulemaking process continue to be conducted under the
aegis of the Supreme Court. See Letter to the Honorable Robert W.
Kastenmeier from the Chief Justice, dated June 25, 1984, Hearings at
195. I agree that the prestige and authority of the Court are important
to acceptance of the rules in both the Federal and State judicial
systems.

Section 2072(b) would provide that the rules promulgated by the
Supreme Court "shall not abridge, enlarge, or modify any substantive
right or supersede any provision of a law of the United States." I
support the first clause of the subsection, which carries forward the
present limitation on judicial rulemaking in 28 U.S.C. §§ 2072 (Rules of
Civil Procedure) and 2075 (Bankruptcy Rules). I am disturbed, however,
by two features of proposed Section 2072(b) which could lead to

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unnecessary satellite litigation and potentially destroy the rulemaking

process as it exists today:

(1) I am concerned that H.R. 2633 does not incorporate the
provision in the current Rules Enabling Acts permitting
judicially promulgated rules to supersede conflicting
procedural statutes. The Rules Enabling Act of 1934 (Act of
June 19, 1934, c. 651, §§ 1, 2, 48 Stat. 1064, as amended, 28
U.S.C. § 2072) contained a provision that "all laws in
conflict with such rules shall be of no further force or
effect after such rules have taken effect." This supersession
authority was necessary because of the numerous procedural
statutes then contained in the United States Code. Although
the Judicial Code of 1948 eliminated many of these obsolete
procedural provisions, subsequently enacted Rules Enabling
Acts have included a supersession provision, permitting
judicially promulgated rules to supersede conflicting
statutes, always subject to the limitation that the rules
shall not "abridge, enlarge, or modify any substantive right."
See 28 U.S.C. § 2076 (Rules of Evidence), 18 U.S.C. § 3771
(Rules of Criminal Procedure: Procedure to and including
verdict), 18 U.S.C. § 3772 (Procedure after verdict). I am
not aware that this supersession authority has caused any
difficulty. And I am concerned that its elimination could
open up the potential that any rule — whether an appellate,
civil, criminal, bankruptcy or evidence rule — may be
challenged as arguably conflicting with a procedural statute.
Congress should not encourage this type of unnecessary

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satellite litigation, which is expensive for the parties and
time-consuming for the courts.

I am aware that some commentators have derived from
Immigration & Naturalization Service v. Chadha, 462 U.S. 919
(1983), a potential constitutional problem, based on Separation
of Powers principles, in permitting judicially promulgated
rules to supersede congressionally enacted statutes. While I
do not purport to be a constitutional law scholar, I do not
perceive any serious constitutional objection to Congress
delegating the rulemaking power to the Judicial Branch,
reserving the opportunity to review proposed rules changes
before they become effective and to pass legislation
suspending or modifying any rules found objectionable. I do
not read in Chadha any implication that the "report and wait"
provisions of the Rules Enabling Acts run afoul of the
Separation of Powers doctrine, upon which Chief Justice
Burger's opinion is bottomed. Chadha held that the one-house
veto provision of Section 244 of the Immigration and
Naturalization Act was unconstitutional because Congress is
authorized to act in the legislative area only by approval of
both the House and the Senate, and presentment to the
President. Except for the Evidence Rules, the Federal rules
are not presently promulgated under such a scheme. Nor would
they be under the procedure proposed by H.R. 2633. Under
proposed Section 2074(a), rules amendments would be
transmitted to Congress and would become effective, without
more, on a specified date unless Congress passes legislation

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barring their effectiveness:.* The Chief Justice in Chadha
specifically recognized die validity of this "report and wait"
process as having been approved by the Supreme Court in
Sibbach v. Wilson & Co. , 312 U.S. 1 (19M). See Chadha , 462
U.S. at 935 n.9. As he noted in Chadha, the "report and wait"
process is not a legislative veto.

As Professor Charles A. Wright has observed, see Wright &
MiHer, Federal Practice and Procedure: Civil § 1001
(1969 & 1985 Supp.), there is no consensus of opinion among
constitutional scholars on the question of whether the power
to regulate judicial procedure in the United States lies
exclusively with Congress or with the judiciary. Able
commentators insist that the right to make rules of procedure
is inherent in the judicial power vested in the courts by
Article III of the Constitution. Dean Roscoe Pound and
Professor John Wigmore, among others, espoused this view.
Other commentators assert that the power to make procedural
rules is a legislative, not a judicial, power. The merits of
these competing legal arguments have been a fruitful subject
for debate. I suggest, however, that the question really is
of no practical importance. The fact is that for 50 years in
the Federal courts we have been operating under a process
which may be best described as judicial rulemaking pursuant to

*H.R. 2633 would eliminate the one-house veto provision, similar to
that condemned in Chadha, that is contained in the present Evidence
Rules Enabling Act, 28 U.S.C. § 2076.

247

congressional delegation and subject to review by the
Congress. See Wright & Miller, supra § 1001 at 30. This
accommodation has worked well and has avoided a confrontation
on constitutional principles.
(2) I am particularly disturbed by the added provision in Section
2072(b) that "Such rules shall not . . . supersede any
provision of a law of the United States." It seems to me that
every procedural rule, when effective, becomes "a law of the
United States," whether promulgated by the Supreme Court or
enacted by Congress, as has been the case in recent years.
See, e.g., P.L. 93-595, § 1, app. Jan. 2, 1975 (Federal Rules
of Evidence); P.L. 97-462, app. Jan. 12, 1983 (Civil Rule 4);
Comprehensive Crime Control Act of 1984, P.L. 98-473, app.
Oct. 12, 1984 (Criminal Rules). Potential destruction of the
entire rulemaking process could result from this provision
because any proposed amendment to an existing rule would
appear to be a change in "a law of the United States," and the
Supreme Court would be powerless to act. Moreover, this new
provision could lead to fruitless satellite litigation
challenging the validity of a rule solely because it arguably
superseded some obscure procedural statute. I suggest that
the seven months "layover period" which would be provided by
proposed Section 2074(a) should be sufficient to permit
Congress to determine whether a proposed rule conflicts with
an existing statute, and, if so, to make any appropriate
modification.

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Proposed Section 2073. Rules of procedure: method of prescribing
Proposed Section 2073 contains several subsections:
Section 2073(a)(1) would require the Judicial Conference to pre-
scribe and publish the procedures for the consideration of proposed
rules. I do not object to this provision, but question that it is
necessary. The Standing Committee has already published such
procedures, which have been approved by the Conference. See Procedures
for the Conduct of Business by the Judicial Conference Committees on
Rules of Practice and Procedure, Hearings at 112. This subsection
merely continues that responsibility.

Section 2073(a)(2) would provide that the Judicial Conference may
authorize the appointment of committees to assist the Conference by
recommending rules to be prescribed under Section 2072. I endorse this
provision. At the present time there are four such advisory committees,
one each for Appellate, Civil, Criminal and Bankruptcy Rules. I am
pleased to observe that the discretionary language of the present bill
responds to the Judicial Conference's criticism of H.R. 4144 as creating
undesirable inflexibility. Section 2073(a)(2) also would provide that
each rules committee shall consist of "a balanced cross section of bench
and bar, and trial and appellate judges." I approve this provision,
which is consistent with the requirement of the 1958 Judicial Conference
resolution establishing the rules program. See Rules of Practice and
Procedure for the United States Courts, Hearings at 109. It is my
belief that the present rules committees are broadly representative.
They include experienced district and circuit judges, members of the
bar, and law professors, widely distributed geographically and chosen

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from diverse professional backgrounds. A current list of rules
committees members is attached to this Statement as Appendix A.

Section 2073(b) would require the Judicial Conference to authorize
the appointment of a Standing Committee on Rules of Practice and
Procedure. The Standing Committee is to review each recommendation of
any other committee and recommend to the Conference such changes in
rules proposed by a committee "as may be necessary to maintain
consistency and otherwise promote the interest cf justice." In
addition, the Standing Committee would have independent authority to
recommend rules. I support these provisions, which are in accord with
present practice.

Section 2073(c)(1) and (c)(2) would require that all rules
committee meetings be open to the public (except when a majority of the
committee votes in open session to close a meeting, stating the reason
therefor); would require that minutes of each meeting be prepared and
made available to the public; and would require that sufficient notice
of each meeting be given "to enable all interested persons to attend."
For the reasons set forth in my Testimony and Prepared Statement at the
previous hearing, see Hearings at 91 (Testimony); 100-02 (Statement),
the Judicial Conference and the Standing Committee are of the view that
this "sunshine" proposal is unnecessary and would seriously impair the
efficient functioning of the rulemaking process without any significant
benefit to the public or to the members of the bar. As there stated, we
concur fully in the objective of full public awareness and participation
in rulemaking, but we believe that our present procedures, as codified
in the "Statement of Operating Procedures," adequately achieve this end.
Opportunity for public participation in the rulemaking process is

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assured by the wide circulation given to proposed rules changes and by
the opportunity afforded any interested person either to submit written
comments or to attend and present oral views at the public hearings that
are held on the draft rules. In addition, the written comments
received, the transcripts of public hearings, the minutes of Rules
Committee meetings, and the Advisory Committee and Standing Committee
reports are available to the public at the Administrative Office of the
United States Courts.

Section 2073(d) would require that any recommended rule change set
forth "a proposed rule, an explanatory note on the rule, and a written
report explaining the [rulemaking] body's action, including any minority
or other separate views." I approve this requirement, which is in
accord with present practice.

As a drafting matter, it appears that at page 3, lines 24-25,
the words "or under section 2072" should be deleted. Section 2072

authorizes the Supreme Court to "prescribe," not to "recommend,"

rules of practice and procedure.

Section 2073(e) would provide that failure to comply with Section
2073 does not invalidate a rule. I endorse this provision, which was
suggested by the Judicial Conference, and others. It is essential to
avoid satellite litigation challenging the validity of a rule solely
because of alleged noncompliance with a minor procedural requirement of
Section 2073.

Proposed Section 2074. Rules of procedure; submission to Congress;
effective date

Proposed Section 2074 contains two subsections:

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Section 2074(a) would require that rules amendments be transmitted
to Congress by May 1, to become effective no earlier than December 1 of
the year in which they are transmitted, the Court being authorized to
fix the extent to which a rule shall apply to pending proceedings. The
current Rules Enabling Acts require that rules changes be transmitted to
Congress by May 1, to become effective after a waiting period of not
less than 90 days (180 days for the Evidence Rules). As set forth in my
previous Testimony and Prepared Statement, see Hearings at 91-92
(Testimony); 96-97 (Statement), the Judicial Conference is of the view
that it is for Congress to determine the amount of time it needs to
consider rules changes, but that a uniform waiting period should be
provided for all rules. The proposal in the present bill appears
reasonable, and I have no suggestions with respect to it.

Section 2074(a) also would require that the Supreme Court transmit
with a proposed rule proposed amendments to any law, "to the extent such
amendments are necessary to implement such proposed rule or would
otherwise promote simplicity in procedure, fairness in administration,
the just determination of litigation., and the elimination of
unjustifiable expense and delay." I question this provision on both
legal and practical grounds. It would appear to require the Court to
render an advisory opinion as to whether a proposed rule conflicts with
an existing statute. Under Article III of the Constitution, which
limits the judicial power to the decision of "cases" and
"controversies," the Supreme Court cannot, of course, render "advisory
opinions." See Flast v. Cohen, 392 U.S. 83, 95 (1968); Wright, Law of
Federal Courts at 57 (4th ed. 1983).

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As a drafting matter, I cannot understand the purpose of the
language at page 4, lines 17-20, which is confusing and appears to be
unnecessary.

Section 2074(b) would provide that "any such rule creating,
abolishing, or modifying an evidentiary privilege shall have no force or
effect unless approved by Act of Congress." This provision incorporates
the language of 28 U.S.C. § 2076 (Rules of Evidence). I have no comment
on it.
SEC. 2(b). ADVISORY COMMITTEES FOR COURTS.

Section 2(b) of H.R. 2633 would amend 28 U.S.C. § 2077(b) by
striking out "of appeals" in the first line and inserting ", except the
Supreme Court, that is authorized to prescribe rules of the conduct of
such court's business under section 2071 of this title," and also by
striking out "the court of appeals" in the third and fourth lines and
inserting "such court." Section 2077(b) of Title 28 presently requires
each court of appeals to appoint an advisory cemmittee to study and to
make recommendations concerning the court's rules of practice and
internal operating procedures. The proposed amendments would also
require the district courts, and all other courts established by Act of
Congress (but not the Supreme Court), to appoint such advisory
committees. A number of district courts have appointed such committees;
it is clearly a desirable practice; and I endorse this provision.
SEC. 2(c) CLERICAL AMENDMENT.

I have no comment on this subsection.

SEC. 3. COMPILATION AND REVIEW OF LOCAL RULES

Section 3 of H.R. 2633 would amend 28 U.S.C. § 331 in two respects:

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(1) Section 3 would insert in the fourth paragraph of Section 331 a
requirement that the Judicial Conference periodically compile the rules
and orders prescribed under 28 U.S.C. §§ 372(c) (11) and 372(c) (15).
Section 372(c) of Title 28, the Judicial Discipline Act, P.L. 96-458, §
3(a) (1980), is not within the jurisdiction of the Standing Committee,
and I shall not comment thereon.

(2) Section 3 would add after the fifth paragraph of Section 331 a
new paragraph requiring the Judicial Conference periodically to compile
the rules prescribed under 28 U.S.C. § 2071 by courts other than the
Supreme Court so as to provide a current record thereof. The new
paragraph would also require the Conference periodically to review such
rules for consistency with rules prescribed under proposed Section 2072
of Title 28 and would authorize the Conference to modify or abrogate any
rule found inconsistent. I question the necessity of a requirement that
the Judicial Conference maintain a current record of circuit and
district court rules. The Administrative Office of the United States
Courts is the appropriate body to maintain a compilation of such rules.

I also question that the Judicial Conference should be required to
review district court rules for consistency with the Federal Rules of
Procedure. Section 4(a)(2) of H.R. 2633, post, would require such
review of district court rules by the judicial councils. Review by the
Judicial Conference would be unnecessarily duplicative and wasteful of
judicial time and resources. Finally, if the suggested revision of
Section 4(b) of H.R. 2633, post, is accepted, Section 3(2) can be
deleted as unnecessary.

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254

SEC. 4. RULES BY DISTRICT COURTS AND ORDERS BY CIRCUIT
JUDICIAL COUNCILS AND THE JUDICIAL CONFERENCE
SEC. 4(a) RULES BY DISTRICT COURTS

Section 4(a) of H.R. 2633 contains two subsections:
Section 4(a)(1) would amend 28 U.S.C. § 2071 by striking out "by
the Supreme Court" and inserting "under section 2072 of this title," and
by adding the following new paragraph[s] (sic) :

"Any such rule of a district court shall be made or amended
only after giving appropriate public notice and an opportunity for
comment. Such rule so made or amended shall take effect upon the
date specified by the district court and shall remain in effect
unless modified or abrogated by the District Court or modified or
abrogated by the judicial council of the relevant circuit. Copies
of such rules so made or amended shall be furnished to the judicial
council and the Administrative Office of the United States Courts
and be made available to the public".

The proposed new paragraph in all material respects tracks the
language of proposed Civil Rule 83 (Rules by District Courts) and
proposed Criminal Rule 57 (Rules by District Courts) now pending before
the Congress. See Amendments to the Federal Rules of Civil Procedure,
Communication from the Chief Justice of the United States, April 30,
1985, 99th Congress, 1st Session, House Document 99-63; Amendments to
the Federal Rules of Criminal Procedure, Communication from the Chief
Justice of the United States, April 30, 1985, 99th Congress, 1st
Session, House Document 99-64. I suggest that incorporation of the same
provisions in a statute is unnecessary.

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Section 4(a)(2) of H.R. 2633 would amend 28 U.S.C. § 332(d) by
adding the following new paragraph:

"(4) Each judicial council shall periodically review the rules
which are prescribed under section 2071 of this title by district
courts within its circuit for consistency with rules prescribed
under section 2072 of this title. Each council may modify or
abrogate any such rule found inconsistent in the course of such a
review.".

The proposed new paragraph would require each judicial council
periodically to review district court rules for consistency with rules
prescribed under proposed Section 2072 of Title 28 and would authorize
the council to modify or abrogate any such rule found inconsistent. It
is a reasonable requirement, and I have no comment.
SEC. 4(b) ORDERS BY CIRCUIT JUDICIAL COUNCILS.

Section 4(b) of H.R. 2633 would amend 28 U.S.C. § 332(d)(1) by
inserting after the first sentence the following new sentence:

"Any general order relating to practice and procedure shall be made
or amended only after giving appropriate public notice and an
opportunity for comment. Any such order so relating shall take
effect upon the date specified by such judicial council. Copies of
such orders so relating shall be furnished to the Judicial
Conference and the Administrative Office of the United States
Courts and be made available to the public".

I sense that the intent of the drafters of this subsection was to
create a procedure for the promulgation of circuit court rules which
would parallel that for the promulgation of district court rules. Since
circuit court rules are promulgated by the courts of appeals and not by

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the circuit councils, the proposed amendment to Section 332(d)(1) of
Title 28 does not seem appropriate. If I am correct as to the
Subcommittee's intent, I suggest that Section 4(b) of H.R. 2633 be
revised to read substantially as follows:

"(b) RULES BY CIRCUIT COURTS.— (1) Section 2071 of title 28
of the United States Code is amended by adding at the end the
following paragraph:

"'Any such rule of a court of appeals shall be made or amended
only after giving appropriate public notice and an opportunity for
comment. Such rule so made or amended shall take effect upon the
date specified by the court of appeals and shall remain in effect
unless modified or abrogated by the court of appeals or modified or
abrogated by the Judicial Conference. Copies of such rules so made
or amended shall be furnished to the Administrative Office of the
United States Courts and be made available to the public."1

"(2) Section 331 of title 28 of the United States Code is
amended by adding after the fifth paragraph the following new
paragraph:

"'The Judicial Conference shall periodically review the rules
which are prescribed under section 2071 of this title by courts of
appeals for consistency with rules prescribed under section 2072 of
this title. The Judicial Conference may modify or abrogate any
such rule found inconsistent in the course of such a review.'"

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SEC. 4(c). RULES BY JUDICIAL CONFERENCE AND CIRCUIT JUDICIAL COUNCILS.

Section 4(c) of H.R. 2633 would amend 28 U.S.C. § 372(c)(ll), the
Judicial Discipline Act. That Act is not within the jurisdiction of the
Standing Committee, and I shall not comment thereon.
SEC. 5. CONFORMING AND OTHER TECHNICAL AMENDMENTS.

Section 5 of H.R. 2633 contains technical and conforming
amendments. I have no comment thereon.
SEC. 6. SAVINGS PROVISION.

Section 6 of H.R. 2633 is the savings clause. It would provide
that rules prescribed in accordance with law before the effective date
of the Act and still in effect shall remain in force until changed
pursuant to the law as modified by the Act. Similar savings clauses
have been included in earlier Rules Enabling Acts. This provision is
reasonable, and I have no comment.
SEC. 7. EFFECTIVE DATE.

Section 7 of H.R. 2633 would provide that the Act shall take effect
December 1, 1986. This effective date appears reasonable, and I have no
comment .

CONCLUSION

I thank you, Mr. Chairman and Members of the Subcommittee, for the
privilege of submitting these views.

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APPENDIX A

COMMITTEE ON
RULES OF PRACTICE AND PROCEDURE

Honorable Edward T. Gignoux
Honorable Amalya L. Kearse
Honorable Walter R. Mansfield
Honorable Walter E. Hoffman
Professor Wade H. McCree, Jr.
Professor Wayne R. LaFave
Edward H. Hickey, Esquire
Gael Mahony, Esquire

259

ADVISORY COMMITTEE
ON
APPELLATE RULES

Honorable Pierce Lively
Honorable Joseph W. Hatchett
Honorable Edward Allen Tamm
Honorable Eugene A. Wright
Honorable Vincent L. McKusick
Honorable Edward D. Re
Ira C. Rothgerber, Jr., Esquire
Honorable Rex E. Lee

260

ADVISORY COMMITTEE

CIVIL RULES

Honorable Frank M. Johnson, Jr
Honorable Joseph F. We i s , Jr.
Honorable Charles E. Wiggins ,
Honorable John F. Grady
Honorable Mariana R. Pfaelzer
Honorable Walter Jay Skinner
Professor Maurice Rosenberg
David J. Anderson, Esquire
W. Reece Bader, Esquire
Larrine S. Holbrooke, Esquire
William T. Kir by, Esquire
Arthur L. Liman, Esquire

Repor t er :

Professor Arthur R. Miller

261

ADVISORY COMMITTEE

CRIMINAL RULES

Honorable Frederick B. Lacey
Honorable Sherman G. Finesilver
Honorable William L. Hun gate •>
Honorabl e' Lei and C. Neilsen
Honorable William C. O'Kelley
Honorable Stephen S. Trott
James F. Hewitt, Esquire .
Richard A. Green, Esquire
Herbert J. Miller, Jr., Esquire
Leon Silverman, Esquire

Repor t er :

Professor Stephen A. Saltzburg

262

ADVISORY COMMITTEE

BANKRUPTCY RULES

Honorable Morey L. Sear
Honorable Norman W. Black
Honorable Franklin T. Dupree,'Jr.
Honorable Joel M. Flaum
Professor Robert \\\ Foster
Honorable Lloyd D. George
Honorable Beryl E. McGuire
Honorable Thomas A. Wiseman
Professor Lawrence P. King
Norman H. Nachman, Esquire
Joseph Patchan, Esquire

Repor t er :

Professor Walter J. Taggart

263

United States District Coi ht

eastern district of new york

225 cadman plaza east

brooklyn. new york 1 1201

JACK B. VEINSTE1N

CHIEF JUKE

July 15, 1985

My dear Chairman Kastenmeier:

Please excuse my delay in responding to your letter
of June 11 seeking my views on H.R. 2633, particularly as the
bill affects local rules.

You have my prior view on the desirability of
removing power to enact district and court of appeals rules
from the Supreme Court. See my book, articles and letter of
May 31, 1983, reprinted at Hearings of April 21, 1983 and
March 1, 1984, p. 196. I recognize, however, the power of
the Chief Judge's suggestion. Id. at p. 195. It may provide
a workable compromise in fact. I therefore do not strongly
oppose the provision of the bill retaining the present rule-
making power of the Supreme Court.

The provisions for public sessions and participation
are important. They should not be watered down further.

The requirement of compilations of local rules is
sensible. Power in the Judicial Conference to abrogate or
modify the rules is sound.

I strongly oppose giving the judicial councils the
power to modify or abrogate local district court rules.
Judicial Conference power is sufficient and should not be
diluted by simultaneous power in the councils. Giving two
bodies responsibility may result in neither doing the job
properly.

I serve on both the United States Judicial Conference
and the Second Circuit Council. Based on that experience I
have no doubt that the Conference rather than the councils
should have supervisory authority. The Conference will be able
to use the information acquired in supervising local rule-
making to achieve necessary national uniformity. Such information
may be helpful in revising the civil, criminal and other national
rules.

264

Hon. Robert W. Kastenmeier

July 15, 1985

Giving the judicial councils supervisory authority
over local court rules would decrease the ability to seek
national uniformity. Lack of uniformity by circuit would be
more serious than lack of uniformity by district, because it
would be less amenable to change on the national level by rule-
making. An individual district would be less able to block
movement toward change than would an entire circuit.

Bear in mind that the judicial councils are primarily
made up of court of appeals judges, many having little trial
experience, while almost fifty percent of the members of the
Judicial Conference are district judges. In the Second Circuit,
for example, the Circuit Council has 11 members from the court
of appeals and six from the district courts (one from each of
the districts in the circuit) . This new power may well lead to
disputes that will create unnecessary tensions within the circuit
between district and court of appeals judges. It will result in
further confusion about the appropriate roles of district judges
and court of appeals judges in supervising district court
procedures. The more appropriate way for the court of appeals
to supervise is by the case-by-case adversarial common law method.
Advisory opinions on local court rules at the court of appeals
level are not, in my opinion, desirable.

We are in the process of trying to revise our practice
in the Eastern District of New York to improve our efficiency in
properly addressing the merits of cases more quickly and in
reducing costs to the system and litigants. In that connection,
enclosed for your information is a pamphlet containing the joint
local rules of the Southern and Eastern Districts of New York,
which is designed to assist lawyers practicing in the New York
metropolitan area. Also enclosed are the standing orders on
discovery of the Eastern District of New York, which embody the
results of long public discussions by the court, the Wesely
Committee and the Bar. Having the Court of Appeals participate
in this process with power to order changes would only inhibit
and prevent desirable improvements.

With all best wishes,

ery respectfully/,

<S -t-r-

Chief Judge

Honorable Robert W. Kastenmeier

Chairman,

Subcommittee on Courts, Civil Liberties and

the Administration of Justice
House of Representatives
Committee on the Judiciary

Washington, D.C. 20515

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ASSOCMTt COUNSEL.
ALAN f CO* fPI. JR.

August 7, 1985

Honorable Edward Thaxter Gignoux

United States District Judge

156 Federal Street

P.O. Box 8

Portland, Maine 04112

Dear Judge Gignoux:

Thank you for your thoughtful letter of July 11, 1985
concerning H.R. 2633. I appreciate your continuing efforts to
help the Subcommittee develop legislation that will improve the
rulemaking process.

As you indicated, many of your comments simply restate
positions previously taken by the Judicial Conference. H.R.
2633, however, has two provisions that have not been officially
addressed by either the Conference or the Standing Committee.
In order to facilitate this review process I am writing to
explain the rationale behind these two provisions. I hope
that the Standing Committee and the Conference will, in light of

266

Judge Edward Thaxter Glgnoux
August 7, 1985

my comments, reassess some of the views stated 1n your letter.

The most Important new Issue raised by H.R. 2633 concerns
the supersession clause, which states that, "All laws 1n conflict
with any such rules [I.e., those promulgated under the enabling
acts] shall be of no further force or effect after such rules
have taken effect." * H.R. 2633 does not carry forward this
clause for two reasons. First, the original reasons for the
clause have long since disappeared, and therefore 1t is unneces-
sary. Second, there 1s substantial doubt concerning the clause's
constitutional ity.

The supersession clause was'part of the original Rules
Enabling Act of 1934 largely because 1t had been part of the
original House/American Bar Association proposal of 1914. 2 That
proposal had included supersession authority because there were
numerous federal procedural statutes which would have been
difficult to identify in advance of the promulgation of the
rules. In addition, supersession authority was thought necessary
to avoid conflict with the Conformity Act.3 Neither condition
exists today. In fact, neither condition has existed since the
1948 recodification of the United States Code which eliminated

1. 28 U.S.C. §2072 (1982). See also 28 U.S.C. 2075, 2076;
18 U.S.C. 3171 , 3772.

2. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L.
Rev. 1015, 1050-54 (1982).

3. Id.

267

Judge Edward Thaxter Gignoux
August 7, 1985

most of the practice and procedure statues and repealed the
Conformity Act.

Not only has the supersession clause fulfilled its purpose,
but current Congressional practice makes supersession
unnecessary. Today, Congress tends to legislate against the
backdrop of the existing Federal rules of practice and
procedure. ^ In addition, Congress has responded promptly
when the Judicial Conference has criticized practice or procedure
statutes which interfere with the efficient and just
administration of the judicial system. For example, over many
Congresses a series of civil priorities were engrafted into the
United States Code. Judicial Conference criticisms of these
mischievous provisions led Congress, at the urging of my Subcom-
mittee, to repeal them.5 Interestingly, the Judicial Conference
never attempted to supersede those statutory priorities by
recommending rules in conflict with the statutes establishing
them. Thus, in practical terms, the supersession authority is

4. See, e.g., Comprehensive Crime Control Act of 1984, Pub.
L. No. 98-473, §§215, 216, 98 Stat. 1837, 2014-17 (1984) (amends
Rules 32, 35, 38, 40, 54, and 6(e)(3)(c) of the Federal Rules of
Criminal Procedure, and Rule 9 of the Rules of Procedure for
the Trial of Misdemeanors Before United States Magistrates).

5. Act of Nov. 8, 1984, Pub. L. No. 98-620, §401, 98 Stat.
3335, 3356-57 (1984). See H.R. Rep. No. 98-1062, 98th Cong., 2d
Sess. (1984).

268

Judge Edward Thaxter Gignoux
August 7, 1986

unnecessary."

The second reason for eliminating the supersession authority
1s the substantial doubt about Its constitutionality under the
separation of powers doctrine.7 Witnesses at my Rules Enabling
Act hearings argued persuasively that supersession would squarely
conflict with the rationale of the Supreme Court's decision 1n
INS v. Chadha. 462 U.S. 919 (1983). 8 Chadha establishes that:
"Amendment and repeal of statutes, no less than enact-
ment, must conform with Article I:"9
"There is no provision allowing Congress to repeal or
amend laws by means other than legislative means

6. This view 1s shared by Judge Weinstein, Professor
Lesnlck, and Dean Cramton. See W. Brown, Federal Rulemaking:
Problems and Possibilities 101 (1981) (hereinafter cited as "W.
Brown" ) .

7. See Prepared Statement of Stephen B. Burbank on H.R.
2633, submitted to the Subcommittee on Courts, Civil Liberties,"
and the Administration of Justice, House Committeee on the
Judiciary at 5, and n.16 and materials cited therein, (herein-
after cited as "Statement of Prof. Burbank"). This view was
expressed as early as 1914. See Hearing's on ABA Bills Before the
House Committee on the Judiciary, 63d Cong., 2d Sess. 29, 30.
(statement of Senator Root) and 36-38 (comments of Rep. Floyd)
(1914). See also, e.g., 3764 U.S. 865 (Black and Douglas, JJ.,
dissenting from Order of Jan. 21, 1963)

8. Rules Enabling Act; Hearings on Rules Enabling Act
before the Subcomm.on Courts, Civil Liberties, and the
Admin, of Justice of the House Comm. on the Judiciary, 98th
Congress, 1st and 2d Sess. 134 (1984) (statement of Burt
Neuborne, Legal Director, ACLU; See also Statement of Prof.
Burbank at 5.

9. 462 U.S. at 954

269

Judge Edward Thaxter Gignoux
August 7, 1985

pursuant to Article I;"10 and

"The explicit prescription for legislative action con-
tained in Article I cannot be amended by 1 egi si ation. "H
Thus, it would seem that repeal of a statute must conform with
Article I. Supersession of a statute by a rule does not conform
with Article I.

The constitutionality of a supersession clause undoubtedly
would be challenged, and the rulemaking process would be
paralyzed until such litigation was resolved. Hence, in my mind,
retaining the supersession clause would be unwise, unnecessary,
unconstitutional and impractical. The Criminal Justice Subcom-
mittee, whose experience with the rulemaking process is long-
standing, recently expressed similar views in its report on
proposed amendments to the Federal Rules of Civil and Criminal
Procedure.

The other provision I wish to mention requires that
the Supreme Court submit to Congress suggested statutory
amendments necessitated by a proposed rule change. Your
letter questions the constitutionality of this provision,
suggesting that such submissions would be unconstitutional
"advisory opinions". It would follow from this, however,
that the Supreme Court implicitly renders such opinions

10. Id^ at 954 n. 18

11. Id. at 958 n. 23

270

Judge Edward Thaxter Glgnoux
August 7, 1985

whenever it prescribes rules, since the Court must conclude
that the rules do not "abridge, enlarge or modify any
substantive rights", relating to practice and procedure,
and are constitutional.12 Thus, the logical conclusion of
your argument would be that the Supreme Court cannot
promulgate rules.

The Judicial Conference regularly sends legislative
proposals to Congress. Perhaps the Judicial Conference, and
not the Supreme Court, could be given the responsibility to
submit any statutory amendments mandated by a rule change.

Finally, your assistance to my Subcommittee has been
most helpful, and the Conference is fortunate to have
someone of your energy and dedication representing it. I
have attempted to accommodate the Conference's concerns with
the rules enabling legislation. I would hope that you will
give my views careful consideration so that the Subcommittee
can move forward with this bill in a spirit of cooperation
with the Conference. I look forward to working with you.

12. Cf. Hanna v. Plumer, 380 U.S. 460, 471 (1965)
("When a situation is covered by one of the Federal Rules,
the question facing the court is a far cry from the typical,
relatively unguided Erie choice: the court has been
instructed apply the Federal Rule, and can refuse to
do so only if the Advisory Committee, this court, and
Congress erred in their prima facie judgment that the Rule
in question transgresses neither the terms of the enabling
Act nor constitutional restrictions.") (Footnote Omitted)

Judge Edward Thaxter Gignoux
August 7, 1985

271

Si ncerely ,

BERT W.

NMEIER

Chai rman

Subcommittee on Courts,
Civil Liberties and the
Administration of Justice

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September 16, 1985

Honorable Warren E. Burger
Chief Justice of the United States
United States Supreme Court
Washington, D.C. 20543

Dear Mr. Chief Justice:

The Subcommittee on Criminal Justice, as you may know, has had
extensive experience with the Rules Enabling Acts, beginning in
1973 with the Federal Rules of Evidence. Most recently, the
Subcommittee had under consideration amendments to the Federal
Rules of Civil and Criminal Procedure that were promulgated last
April 30. As a result of its inquiry into those amendments, the
Subcommittee decided not to recommend legislation to modify or
delay the effective date of the amendments and issued the
enclosed report.

I understand that this week the Judicial Conference will discuss
H.R. 2633, Representative Bob Kastenmeier ' s bill to revise the
Rules Enabling Acts, and in particular will take up the super-
cession clause. The Subcommittee, for reasons set forth at
pages 17-18 of the report, believes that the clause should not be
carried forward. You may wish to bring this portion of the
report to the attention of the Judicial Conference.

On behalf of the Subcommittee, I call your attention to the
comments in the report concerning the Chairman of the Standing
Committee on Rules of Practice and Procedure, Judge Edward T.

273

Honorable Warren E. Burger
Page 2

Gignoux. Judge Gignoux has been helpful to the Subcommittee, and
he has done a fine job in developing and overseeing the implemen-
tation of the formal procedures now being followed by the
Standing Committee and the Advisory Committees. The Subcommittee
is most appreciative of his assistance.

Sincerely,

fj/hn Conyers, Jr. CJ
^fhairman ^

Subcommittee on Criminal Justice

Enclosure

274

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON. DC. 20544

CHAIRMEN OF ADVISORY COMMITTEES

edwarot gignoux September 24, 1985 pierce lively

CHAIRMAN »I-PELI>TE RULE*

FRANK M JOHNSON. JR.

CIVIL RULES

JOSEPH F. SPANIOL. JR FREDERICK B LACEY

SECRETARY CRIMINAL RULES

MOREY L SEAR

BANrOUPTCV RULES

Honorable Robert W. Kasteruneier

Chairman, Subcommittee on Courts, Civil Liberties

and the Administration of Justice
Committee on the Judiciary
United States House of Representatives
2232 Rayburn House Office Building
Washington, D.C. 20515

Dear Mr. Chairman:

With further reference to my letter of July 11, 1985, submitting a
Prepared Statement setting forth my views, as Chairman of the Judicial
Conference Standing Committee on Rules of Practice and Procedure, on the
provisions of H.R. 2633, 99th Congress, the bill to amend the Rules
Enabling Acts, I am pleased to report that at the semiannual meeting of
the Judicial Conference on Wednesday, September 18, 1985, the Conference
endorsed the views expressed in my Statement. The members of the
Standing Committee had approved the Statement before it was presented to
the Conference.

In response to your thoughtful letter of August 7 expressing the
hope that the Standing Committee and the Conference would reassess some
of the views stated in my letter, I am also pleased to report that the
Conference authorized me to advise you as follows:

(1) The Conference does not object to the failure of H.R. 2633 to
carry forward the supersession clause in the present Rules Enabling
Acts, which states that "all laws in conflict with any such rules
shall be of no further force or effect after such rules have taken
effect." The Conference defers to your view that the supersession
clause is probably unnecessary since the Judicial Code of 1948
eliminated the numerous federal procedural statutes which were the
principal reason for the clause. The Conference also is" persuaded
that it would be unwise to invite litigation challenging the
rulemaking process by those who question the constitutionality of a
supersession clause under the Separation of Powers doctrine.

(2) The Conference has no objection to your suggestion that the
Judicial Conference, rather than the Supreme Court, be given the
responsibility to submit to Congress any suggested statutory
amendments necessitated by a proposed rule change. As you point
out, the Judicial Conference regularly sends legislative proposals
to Congress. Vesting this responsibility in the Conference would

275

Hon. Robert W. Kastenmeier — 2 September 24, 1985

remove the question of whether such submissions by the Supreme
Court would be unconstitutional "advisory opinions."

On behalf of the Standing Committee and the Judicial Conference,
may I say that we appreciate your courtesy in offering us the
opportunity to comment on this bill. We stand ready to assist you and
your staff in the drafting of any legislation you may propose for
modification of the Rules Enabling Acts. It is a privilege and a great
personal pleasure to work with you in this important endeavor.

With best personal wishes.

Sincerely,

vDdlM-^^Sq^w^

276

AMI ("CAN C'VIt LlBtHlltS UNION

WASHINGTON OFFICE

September 26, 1985

Honorable Robert W. Kastenmeier
Chairman, Subcommittee on Courts,

Civil Liberties, and the

Administration of Justice
:.;-!-; -i.- ",r-tes House of RpprfissntiUves
2137-B P-ay-burn House Office 3uil<3ing
Wasningtorii D.C. 20i>lb

Attn: David Beier

P.e: H.R. 2633, the Rules Enabling Act of 196"

122 Ma-y ano -venue NE
Wasr-;:- :C200C2

Natio-i Heac^janers
t32 West *3rc Street

New Y;rk NY 10036
(212)S"S80C

Norma- Dorsen

Ira Glasse-

Eteanc ric mes Norton

CMAN)

r.f a; ~er.~~ sen t a t i ve Ko'^snTi^ isr:

The ACLU, through Legal Director Burt Nleuborne, testified on
an eariier version of the proposed legislation, H.K. 4144, 98th
Cong., 1st Sess. See Rules Enabling Act, Hearings Before the
Suncorr.m. on Courts, Civil Linert n=?s , anc z

JUStK

the House Comm.

-.c-.nistrat lor, or
or. the Judiciary, 9>3th Cong.. 1st S
"Subsequent to those hearings, you

Sess7^L30-S3 (1983 & 1984
introduced a revised bill, H.R. 2633, 99th Cong., 1st Sess.,
which in turn has been the subject in the past few months of
additional testimony, comments, and correspondence.

In addition to the matters we discussed in our earlier
testimony, we have serious concerns about several provisions in
H.R. 2633, and also about several matters which are not but
should be addressed in H.R. 2633. Since we now understand that
you may not be holding additional hearings on H.R. 2633, we are
taking this opportunity to address our concerns.

As will become apparent, we address in the following
comments only § 2 of H.R. 2633 (the proposed amendments to 28
U.S.C. § 2072 and § 2073). We, however, do support the other
sections of the bill.

1. Your earlier bill, H.R. 4144, would have vested rule
making power in the Judicial Conference; whereas H.R. 2633 would
vest that power in the Supreme Court, where it resides at least
in name under current law. We are firmly of the view that rule
making power should not be vested in the Supreme Court. We are
aware of the. argument that the imprimatur of the Supreme Court
makes the federal rules more likely to be followed by the lower
federal courts and more likely to be used as models for state

277

Honorable Robert W. Kastenmeier
September 26, 1935

?330 2

court r_les, but we disagree that these effects would necessarily
follow, and we in any event believe that this argument and others
are strongly outweighed by the appearance if not reality of
unfairness and injustice. The Supreme Court simply should not be
promulgating rules which it later sits in judgment of. We thus
urge that the rule making power be vested in some other body,
such as the Judicial Conference as you initially proposed in H.R.
4144.

2. H.R. 2633 correctly provides that the federal rules
shall net "supersede any provision of a law of the United
States." Since federal rules not enacted by Congress are not
laws, we strongly endorse this supercession clause and urae that
it be retained. As other commentators have pointed out, the
historical reasons for the contrary provisions in current law no
longer pertain. Moreover, as is made clear in I.N'.S. v. Chadha,
•462 U.S. ;;_■. 354 (19Ci), it ic Ccr.-resc' role to repeal statutes
or render them ineffective in conformance with Art. 1 of the
Constitution. We thus fully support the supercession clause in
H.R. 2633.17

3. We endorse those provisions of H.R. 2633 which would
require the Judicial Conference to prescribe and publish
procedures for the consideration of proposed rules, which would
authorize the Judicial Conference to appoint advisory committees
consisting of a balanced cross section of bench and bar (a
balance which we submit has not been achieved to date), and which
would require the Judicial Conference to appoint a standing
committee. We believe, however, that the terms of membership on
the advisory committees should be both fixed and of limited
duration. H.R. 4144 prescribed five year terms with service
limited to ten years. We support this approach, particularly in
view of the many members of the bench and bar who possess
considerable procedural expertise. To the extent that a service
limitation may prevent continuity at possibly crucial times, as
some commentators have argued, we suggest that this problem could
be dealt with through a provision authorizing staggered terms and
allowing reappointments or extensions f or> up to two additional
years in extraordinary circumstances.

4. We support the provisions of H.R. 2633 which would
require notice and would ordinarily require open meetings, but we
are troubled by the provision which would allow committees to
close meetings whenever they deem it to be "in the public
interest." Our concern here is not particularly with regard to

1. We recognize that the supercession clause may create a
problem concerning future amendments of federal rules which have
been enacted- by Congress. We believe, however, that this problem
could be alleviated through a two-tier approach for rules and
statutes, as recently suggested by the Subcommittee on Criminal
Justice of the House Committee on the Judiciary. See H.R. Rep.
No. 2, 99th Cong., 1st Sess. 13 n.98 (1985).

278

Honorable Robert W. Kastenmeier
September 26, 1985

?3 3v> 3

early meetings concerning proposals or drafting, but instead wit'n
regard to post-hearing meetings where rules are voted on or where
the language of a proposed rule, of a note, or of a report is
discussed. It is these latter meetings which s-.ould always be
open. We thus suggest that H.R. 2633 would be markedly improved
oy a provision requiring such post-hearing meetings to be open,
or at least imposing a strong presumption against the closing of
such meetings.

5. We fully support the provision in H.R. 2633 which would
require a recommended rule change to be accompanied by the
oroposed rule, an explanatory note, and a written report. This
provision can only enhance the proper interpretation and
amplication of the rules.

6. As to the layover tinic allowed to Ccr.gresr, we note
that H.R. 2533 proposes a se.- i- tri layover, ~. 'eat H.R, 4-4
proposed a nine-month layover. Because we believe Congress'
involvement in the rule making process is important, and because
rhe actual layover time is shortened considerably by Congress'
ho3 i.-!ay recesses particularly in election years, vs believe that
a longer layover better facilitates Congress' review.

7. We object to the provision in H.R. 2633 which would
authorize the Supreme Court, or in our view the Judicial
Conference, simply to "fix the extent such rule shall apply to
-. rcceed ings then pending." We would prefer instead a new
provision in H.R. 2633 modeled on the effective date language
commonly used by the rulemakers as reflected in Rule 86 of the
Fed. R. Civ. P . i.e., that the new rules "govern all proceedings
in actions brought after they take effect and also all further
proceedings in actions then pending, except to the extent that in
the opinion of the court their application in a particular action
pending when the amendments take effect would not be feasible or
would work injustice, in which event the former procedure

appl ies. "

8. We agree with the provision in H.R. 2633 which would
require the Supreme Court — although we would prefer the
Judicial Conference — to transmit to Congress along with any
proposed rule a statement of which federal statutes may be
affected by or even in conflict with a proposed rule. In the
latter situation, we urge that H.R. 2633 make absolutely clear —
as it currentlly does not — that no such proposed rule could
take effect unless Congress affirmatively amended any such
conflicting statute. To the extent that this transmittal
provision might impermissibly involve the Supreme Court in
rendering advisory opinions, as some commentators have argued, we
suggest that a proper response would be for H.R. 2633 to assign
this transmittal function to the Judicial Conference. A better
response, as we stated in our first comment, would be for H.R.
2633 to vest rule making power in the Judicial Conference.

Many of the foregoing concerns may be viewed as relatively

279

Honorable Robert W. Kastenmeier
September 26, 193 5
?aae 4

minor or technical, nut ws nonetheless hope our views will be
considered. Most important of our concerns are the first two,
reflected in our first two comments: pertaining to (1) vesting
the rule making authority in the Judicial Conference, and (2)
retaining the supercession clause. We hope our views as to these
important matters also will be given consideration.

If you have any questions about any of our concerns
addressed in this letter, we would be pleased to meet with you at
your convenience so that we could further explain our views as
well as exchange ideas.

Thank you for your consideration and for your leadership on
this important subject.

Sincerely,

E. Richard Larson
National Staff Counsel

Burt Neuborne
Legal Director

cGr

y>\j~p-

Morton Halperin

Director, Washington Office

ERL:ln

280

THE UNIVERSITY OF MICHIGAN
LAW SCHOOL

HUTCHINS HALL

Ann Arbor. Michigan 4S109-1215

September 20, 1985

David Beier, Esq.

House Judiciary Committee

2137B Rayburn House Office Building

Washington, D.C. 20315

Dear David:

Thank you for sending me a copy of Phillip Brady's letter stating the
views of the Department of Justice on H.R. 2633. As you know, I share the
Department's reservations about the open meeting provision, although not the
concern about procedural challenges, which are addressed in the bill. I am
aware, however, that that issue is invested with a substantial political
component.

As to the Department's views on supersession, a few observations are in
order. First, the difficulty arising from, e.g., the Federal Rules of
Evidence, is one that you have already noted and that could be dealt with by
an amendment to the bill. I address the constitutional problems with such an
amendment below. Second, although asserting that "the judicial branch should
retain its current flexibility," Mr. Brady nowhere addresses the costs of the
current system. One of these costs is the additional pressure that
supersession puts on Congress to block proposed Federal Rules. Third, Mr.
Brady does not identify the benefits of supersession provisions. Considering
the reasons for their inclusion in the enabling acts and the history since
that time, including in particular the 1948 revision of the Judicial Code, it
is not clear what those benefits are.

Finally, I note that the Department has picked up and attempted to run
with a line of analysis suggested in my June 6 statement before
Representative Kastenmeier ' s subcommittee ("Does Chadha foreclose Congress
from ceding, as part of an otherwise valid delegation, its supremacy in an
area of shared power (retaining all the while the power to reassert it)?").
Mr. Brady's letter, however, makes me no more confident of the answer to that
question than I was in June. For, it is not clear that he distinguishes
judicial power that is inherent in the sense that the courts can act in the
absence of legislative authorization and power to act in contravention of
legislation. And it is quite clear that he follows many others in failing to
distinguish among rulemaking in the context of a case or controversy, local
court rulemaking and supervisory court rulemaking.

I believe that federal courts have inherent power both to fashion rules
of procedure for a case or controversy and to regulate their proceedings
prospectively by local court rules. It has never been necessary to test the
latter proposition, because there have been federal statutes so authorizing
since the beginning of the Republic. This power is not, however, inherent in
the sense that its exercise trumps contrary legislation. Federal statutes

1 -

281

have long required that local court rules be consistent with federal statutes
(see now 28 U.S.C. Section 2071), and to my knowledge the Court has never
questioned Congress' power to impose that requirement. Indeed, it has
reaffirmed the requirement, notwithstanding its absence in Fed. R. Civ. P. 83.
See Colgrove v. Battin, 413 U.S. 149, 161 n.18 (1973).

It is harder to maintain that the Supreme Court, whatever its
supervisory power in the context of a case or controversy, has inherent power
to fashion rules regulating the practice and procedure of the lower federal
courts prospectively (supervisory court rules). Again, it has never been
necessary to answer the question, because the Court has had statutory
authority when it has acted. In any event, I deem it inconceivable that, if
the Court does have inherent power in this context, it is power to proceed
contrary to legislative direction. See Burbank, "Sanctions in the Proposed
Amendments to the Federal Rules of Civil Procedure: Some Questions About
Power," 11 Hofstra L. Rev. 997, 1004-1006; Burbank, "The Rules Enabling Act
of 1934," 130 U. Pa. L. Rev. 1015, 1021 n.19, 1115 n.455, 1183 n. 728
(1982).

Even assuming the Court's power to prescribe supervisory court rules in
the absence of legislative authorization (inherent power of the weaker type),
I think the Department's analysis may be too facile. I am not referring to
the debater's point about repeal vs. supersession. Rather, the fact is that
Congress does enter the field, according to the requirements of Article I,
when it passes statutes. Functionally viewed, general supersession
provisions represent not "forbearance or def erence . . . to the judiciary's
inherent authority" but a general attempt by Congress to turn power that is
inherent in one sense into power that is inherent in another. I am by no
means sure that Congress is free to do that.

I am somewhat more sanguine about the constitutional validity of
specific supersession provisions, such as the authorization to prescribe
amendments to the Federal Rules of Evidence (which an amendment to H.R. 2633
might seek to preserve). Let us forget about "inherent power." Does
Congress have the power to establish temporary rules in a statute and to
provide for their supersession upon the promulgation of rules prescribed by
the Supreme Court (or some other delegate) under a delegation that is
otherwise valid? I should think so. Moreover, I should think that Congress
could provide for supersession retrospectively so long as it identified the
rules that, under this analysis, are "temporary." In both cases the repeal
could, without too much strain, be attributed to Congress, acting in
accordance with Article I.

From this persepctive, the problem with general supersession provisions
is that, not only did the Congress that passed the statute putatively
superseded not focus on the issue, but no Congress has. This distinction
emerges from the debate that attended the insertion of the supersession
provision in the bill that became the Rules Enabling Act of 1934. See

- 2 -

282

Burbank, "The Rules Enabling Act of 1934," 130 U. Pa. L. Rev. 1015, 1050-54
(1982). It may not be a sufficient answer that the limits on the delegation
in that statute serve much the same purpose as congressional specification,
with the result that only "procedural" statutory provisions are superseded.
All legal rules represent adjustments of competing policies. Under the
current interpretation of the Enabling Act, it is possible for the Court to
promulgate a valid Federal Rule that reflects a choice of "procedural" over
"substantive" policies. That Rule supersedes a pre-existing statute with
which it is inconsistent even though Congress made precisely the opposite
policy choice. This, I take it, is the general problem that led
Representative Kastenmeier to state, in connection with proposals to amend
Rule 68, "Congress confirmed a substantive right by enacting the Civil Rights
Attorney Fee Award Act." 130 Cong. Rec. 4105 n.3 (daily ed. Oct. 1, 1984).
Unfortunately, the Court's decisions do not suggest agreement with his view
of the Enabling Act's limitations.

In light of the Department's failure to address most of the practical
considerations relevant to a policy decision about supersession and its
failure to dispel constitutional doubts, I would urge that H.R. 2633 not be
changed in this aspect.

Sincerely,

Stephen B. Burbank
SBB/vt

283

COLUMBIA LAW REVIEW

Vol. 76 OCTOBER 1976 No. 6

REFORM OF FEDERAL COURT RULEMAKING

PROCEDURES*

JACK B. WEINSTELN**

Introduction

The subject of this study is court control of court practice and related
matters through court-promulgated rules. Rulemaking1 powers are being
exercised increasingly by national, state and local courts. Court rules have
much the same form and effect as legislative enactments: they control all
litigation falling within their ambit; they are subject to interpretation; and
they may be declared invalid if found to be unconstitutional, or in conflict
with legislation. In most instances the legislature has power to amend or
reject rules adopted by a court.2 In other instances rules adopted by a court
or judicial body form an amalgam with statutory provisions adopted by
the legislature.3

• This Article is based on a series of lectures delivered at the Law School of Ohio State
University in the Spring of 1976. The ground covered in the Article will be developed in more
detail in a book by the author to be published by the Ohio University Press in 1977. The
author is grateful for the assistance of William Bonvillian of the Connecticut and Washington,
DC. bars. Denise Cote and Keith Secular, both of the New York bar, have assisted in
gathering material and have made editorial suggestions.

•* Adjunct Professor. Columbia University School of Law. United States District Judge.
Eastern District of New York. B.A., Brooklyn College, 1943; LL.B., Columbia University.
1948.

1. "Rulemaking" is sometimes used to refer to significant reformulation of decisional
law. See G. Hazard, Representation in Rule Making in Law and the American
Future 85 (M.L. Schwartz ed. 1976). As Professor Hazard uses the term, rulemaking
includes

— the procedures used by courts and agencies performing adjudicative functions in
adopting rules of procedure and rules governing their own internal administration:
— the procedures used by appellate courts when they contemplate significant refor-
molation of decisional law.

Id. at 87. The term is not used in that sense in this Article.

The problem of administrative rulemaking as opposed to adjudication is not discussed in

this Article. For a discussion of this problem see the panel discussion at the Federal Bar

Convention described in 45 U.S.L.W. 2159, 2163 (9^28,'76)-.

2. The Federal Rules of Civil and of Criminal Procedure and the Federal Rules of Evidence
are typical of this subjugation of court rulemaking to legislative control. New Jersey's highest
coun was almost unique in claiming that its power to adopt rules is not subject to legislative
control: but that court has been forced to compromise this position. See notes 117-21 and
127-38 and accompanying text infra.

3. The New York Civil Practice Law and Rules, for example, includes provisions
adopted and modified by the legislature as well as those adopted by the New York State
Judicial Conference subject to legislative veto or change. See NY. Civ. Prac. Law & R. §
102 (M. Bender Civ. Prac. Ann. 1975); N.Y. Jud. Law § 229(3) (McKinney 1968).

Reproduced with the permiaaion of the Directors of the Columbia Law Review Association, Inc. from Columbia
Law Review, v. 76, Oct. 1976: 905-964.

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906 COLUMBIA LAW REVIEW [Vol. 76:905

Each individual federal court is also generally empowered to adopt
rules affecting its own practice. At the local level, court rules have been
adopted by each of the federal district courts4 and by each one of the
circuit courts of appeals;5 state courts have adopted similar local rules.6

Particularly at the federal level, the procesr of court rulemaking has
worked fairly well: rules of evidence and rules for civil, criminal, bank-
ruptcy and admiralty cases at both trial and appellate levels have been
adopted and are generally acknowledged to be sound. The process, how-
ever, presents not only advantages but serious dangers. Some disturbing
issues have arisen and substantial changes should now be considered.
While this Article places primary emphasis on the national court system,
considerable attention is given to the experience of the states because in
rulemaking, as elsewhere, state courts provide effective laboratories for
testing new approaches.7

The central thesis of this Article is that no pure theoretical source of
rulemaking power exists. The taproot of rulemaking power in this country
is legislative delegation, though there is also nourishment from the inherent
role of a constitutionally independent judiciary. Consequently, when courts
exercise rulemaking powers they should do so in general consonance with
theories of delegation.

After a brief introduction, the Article examines the evolution of judi-
cial independence from the twin theories of separation of powers and
judicial review; it then explores the argument that the power of courts to
make their own procedural rules is an integral aspect of judicial indepen-
dence. From both an historical and practical perspective, it is concluded,
however, that a delegation theory best achieves the practical balance be-
tween the legislative and judicial branches necessary for effective utiliza-
tion of the rulemaking power. States where this balance has been tipped
toward judicial control of rulemaking have ensnarled themselves in unnec-
essary difficulties and unseemly conflicts bwtween courts and legislatures.

4. Federal Local Court Rules (H. Fischer & J. Willis eds. 1972) is a collection in
loose leaf form.of civil and general local rules. There is no national collection of criminal rules.

5. 28 U.S.C.A.. United States Courts of Appeals Rules (1969).

6. See. e.g.. rules for various New York courts collected in 1975-76 Civ. Prac. Ann. of
N.Y. (M. Bender 1975).

7. For bibliographies on the subject and summaries of rulemaking in United States
jurisdictions, see ABA. Comm. on Standards of Judicial Administration. Standards
Relating to Court Organization 76(1974); F.J. Klein, Judicial Administration and
the Legal Profession 290 el seq. (1963) (an invaluable book which will appear in a new
edition in 1976); Study of Rule-Making Power, Third Preliminary Report of (N.Y.)
Advisory Committee on Practice and Procedure (1959); Ashman, Measuring the Judi-
cial Rule-Making Power. 59 J. Am. Jud. Socy 215 (1975) (summary of the excellent studies
of the American Judicature Society); Blau & Clark, Sources of Rules of State Courts. 66 Law
Lib. J. 37 (1973); Annot.. 158 A.L.R. 705 (1945); Annot.. 110 A.L.R. 22 (1937); American
Judicature Society. Uses of the Judicial Rule-Making Power (1974) (mimeograph); American
Judicature Society, The Judicial Rule-Making Power in Slate Court Systems (October. 1967)
(mimeograph); J. A. Parness & C.A. Korbakcs, A Study of the Procedural Rule-Making Power
in the United States 68-76 (August. 1973) (mimeograph); C. Sherr, Bibliography— Rule-
Making Power of the Courts (1928-1955) (1955) (unpublished bibliography on file at the
Columbia Law School Library).

285

1976] COURT RULEMAKING 907

The remainder of the Article discusses reforms necessary for a more
effective and less abrasive exercise of the rulemaking power including
greater public deliberation and participation in the development of rules,
the replacement of the Supreme Court by the Judicial Conference as the
rulemaking body, limitation of congressional review of proposed rules to
broad principles and outlines, and court restraint in initiating important
substantive and jurisdictional changes through rulemaking. Comparable
reforms are suggested in the areas of local court rules and individual
judge's rules.

A. Rulemaking as Legislation

In certain respects, rulemaking by federal courts resembles a legisla-
tive rather than a judicial process. The departure from usual adjudicative
patterns is most clearly exemplified by the absence of a controversy: at the
level of national federal rulemaking, the Supreme Court lays down general
standards applicable to all future cases without the aid of individual fact
situations and adversary argument.8 In rulemaking, the Court's legislative
pronouncements are reviewed by Congress — a reversal of the usual prac-
tice under which congressional legislation is measured and interpreted by
the courts in the light of constitutional and other requirements. In normal
adjudications the Court's power is based upon the Constitution, although
that power is limited by jurisdictional, venue and other provisions enacted
by Congress. The Court's power to make rules, in contrast, was granted by
Congress under specific limitations; having accepted that grant for many
years, it is doubtful that the Court could claim inherent power if general
rulemaking power were circumscribed.

Judicial rulemaking is further distinguished from adjudication by the
absence of traditional limitations on its exercise. Where a court utilizes a
case before it as an opportunity to pronounce broad principles and detailed
regulations,9 it is subject to the restrictions imposed by stare decisis.10
Further constraints on judicial legislation are provided by the requirement
that the controversy before the court be concrete, by the adversary nature
of the proceeding, and by the need of the court to justify its decision by a
reasoned opinion." Moreover, the possibility exists of relatively easy mod-

8. [EJach Justice studies those rules. He is not given the benefit of any adversary
report. ... In the conference of the Court, a vote is taken as to whether the rule shall
be submitted to Congress.

Hearings on Proposed Rules of Evidence Before the Special Subcomm. on Reform of Federal
Criminal Laws, House Comm. on the Judiciary. 93d Cong.. 1st Sess. 145 ( 1973) (testimony of
Justice Arthur J. Goldberg) [hereinafter cited as Evidence Hearings].

9. See. e.g.. Miranda v. Arizona. 384 U.S. 436 (1966).

10. But see Address by Judge Lumbard. Conference of Chief Justices in Honolulu
(August 3, 1967). Judge Lumbard criticized Miranda v. Arizona. 384 U.S. 436 (1966). on the
ground that the matter should have been treated by rulemaking, particularly since the Amer-
ican Law Institute was considering the matter as part of its work on pre-arraignment proce-
dures.

• I. But cf. Vorenberg. A.L.I. Approves Model Code of Pre- Arraignment Procedure. 61
A. B.A.J. 1212, 1213 (1975) (suggesting that in promulgating rules for interrogation in Miranda

48-930 0—85 10

286

908 COLUMBIA LAW REVIEW [Vol. 76:905

ification through future interpretations and legislation.12

In the normal legislative process, there are equivalent safeguards
promoting a reasoned determination acceptable to the public: the legisla-
tion must be publicly introduced; it is considered by committees; fact-
finding research may be undertaken;13 the views of the public are heard
through representatives of pressure groups; and hypothetical and actual
situations and precedents are tested against the draft to rectify careless
articulation of the legislative standard. More generally, the varied back-
grounds and regional interests of legislators normally exert a balancing
effect on the final product; the prospect of answering to voters at election
time encourages legislators to act with care. Finally, before the bill is
approved, the public has the opportunity to place pressure on the execu-
tive. These are all very real protections in a democratic system.

The court rulemaking process is not subject to similar safeguards.
Most of the discussion and decisionmaking takes place privately, so that
the public may first become aware of a rule upon its publication after
adoption. This is particularly true of local rules,14 which may involve such
important matters as jury size, sentencing policy, permissiblity of class
actions, freedom of the press to publicize cases, and admission to the bar.
Sometimes, as in the case of guidelines issued by higher courts, there is no
publication even after adoption.15

Generally, the United States Supreme Court has adopted rules in a
manner which affords considerable protection to the public: proposals are
published by the Advisory Committee considering them; opportunity is
then given to the public to comment; the Advisory Committee publishes
revised drafts; the Standing Committee on Federal Rules of Practice and
Procedure of the United States Judicial Conference reviews the proposals
and makes changes; the United States Judicial Conference forwards them
to the Supreme Court; the Court then adopts, modifies or rejects the
proposals: and, finally, Congress has an opportunity to pass upon them.
Within the last few years Congress has taken a more vigorous interest in
national rules than in the past; it has made major modifications in the
Federal Rules of Evidence and in the amendments to the Federal Rules of
Criminal Procedure.16 Nevertheless, the deliberations of the Advisory

v. Arizona. 384 U.S. 436 (1966), the Court went far beyond the facts and overstepped proper
judicial function). See also Mildner v. Gulotta, 405 F. Supp. 182. 201 (E.D.N.Y. 1975)
(Weinstein. J., dissenting), ajpd. 425 U.S. 901 (1976). The dissent was based on minimum
standards of right to be heard and to obtain a reasoned opinion in court cases.

12. Change becomes awkward, however, when a decision is grounded upon constitu-
tional imperauves. See generally Monaghan, The Supreme Court 1974 Term — Forward: Con-
stitutional Common Law, 89 HaRV. L. Rev. I (1975).

13. See Linde, Due Process of Law Making. 55 Neb. L. Rev. 197, 223-24 (1976).

14. See text at notes 241-43 infra. See generally note 4 supra.

15. See, e.g.. text at note 307 infra.

16. See generally Hungale, Changes in the Federal Rules of Criminal Procedure, 61
A. B.A.J. 1203 (1975).

287

1976] COURT RULEMAKING 909

Committee, which makes the basic decisions, are private.17 It holds no
public hearings, and while it does receive written communications, its
membership and method of organization may make it particularly suscepti-
ble to the views of the courts, groups represented by its members and
governmental bodies. Appointment of members by the Chief Justice gives
him a great deal of direct and indirect influence on the Committee's deci-
sions.

B. Advantages of Rulemaking in Meeting Growing Pressures on the
Courts

The present wide-ranging role of courts in the social, economic, tech-
nical and political affairs of this country is a relatively recent development.
When the Republic was in its infancy, it was generally agreed that
common — that is, non-statutory — law, whether procedural or substantive,
should develop by accretion through decision in individual cases. Dicta
were, of course, not unknown and the courts were clearly aware of the
prospective nature of their rulings in individual cases and of the impact of
stare decisis on the law. The courts adhered fairly strictly, however, to the
concept of separation of powers; at the federal level at least, they refused
to render advisory opinions.'8

This restrictive model of the courts' role began to break down early in
this century. Antitrust cases requiring the courts to make national eco-
nomic policy were a harbinger of a new approach. So, too, was the
so-called "Brandeis brief," which recognized explicitly that substantive
social policy was being developed by the courts." Cases involving attacks
on broad state legislative schemes — such as the public welfare cases of the
twenties and thirties — were accepted. Congress modified substantive rights
in ways that required the courts to resolve individual disputes involving
large groups of persons and entities.20

17. Much of the information and conclusions in this Article is based upon the author's
experiences as a member of the Federal Advisory Committee on Rules of Evidence, various
committees of the United States Judicial Conference, the Second Circuit, the District Court
for the Eastern District of New York, bar associations, and New York State legislative and
judicial committees and commissions.

18. See text accompanying notes 50-55 infra. This is not to say that there were no
departures from this doctrine. See, e.g.. Plessy v. Ferguson, 163 U.S. 537 (1896); The
Slaughterhouse Cases. 83 U.S. (16 Wall.) 36(1873); Dred Scott v. Sanford. 60 U.S. (19 How.)
393 (1857); Marbury v. Madison. 5 U.S. (I Cranch) 137 (1803).

19. See J. Weinstein & M. Berger, Weinstein's Evidence 111 2OO(03HO4] (1975);
Note. Social and Economic Facts — Appraisal of Suggested Techniques for Presenting Them
to the Courts. 61 Harv. L. Rev. 692 (1948). Cf Chayes. The Role of the Judge in Public Law
Litigation. 89 Harv. L. Rev. 1281, 1289-1304 ( 1976Millustrating the procedural reforms of the
liugation process which have resulted from the social aspects of the judicial function).

20. Chief Justice Burger has commented:

The tendency of Americans to try to resolve every sort of problem in the courts
continues. Overwhelmed by increased demands for regulatory legislation, for
broadened governmental programs of all kinds. Congress enacts legislation much of
which reaches the courts for resolution.
Chief Justice Burger Issues Yearend Report, 62 A. B.A.J. 189 (1976).

288

910 COLUMBIA LAW REVIEW [Vol. 76:905

Along with this broadening of the courts' role, heavy pressure from
expanding concepts of due process — "individualized determination" as
opposed to "categorical treatment"21 — has increased the burdens of litiga-
tion.22 The possibility of requiring less than full-fledged evidentiary trials
by shaping procedural due process rules to reduce "the risk of error
inherent in the truth-finding process"23 in specific classes of cases, has
promised a decrease in the growth rate of administrative hearings, but not
yet in that of judicial trials. This country's original emphasis on individual
liberty and personal rights, recently reinforced by the specter of modern
totalitarianism, has not abated; "individual decision making"24 on a huge
scale provides a continuing challenge to the judicial system.

These changes have resulted in steadily mounting caseloads. Under-
standably, courts have sought ways to handle disputes on a wholesale
rather than an individual basis while avoiding too sharp a departure from
prior concepts of the limitations on their roles.25 Modern court rules reflect
these moves toward efficiency. Much of the current environmental, con-
sumer and securities litigation, for example, has been made possible by an
expanded class action rule,26 while free intervention rules27 and more
flexible procedures generally have broadened the scope of litigation. Trans-
fer and consolidation rules and statutes for pretrial proceedings and trials in
multi-district litigation have made national litigation easier.28 The applica-
bility of res judicata has been expanded so that disputes among many
parties can be disposed of in one case.29 Standing requirements have been
relaxed,30 mootness has been ignored31 and the significance of ripeness has

As one example. Title VII legislation covering discrimination in employment, 42 U.S.C. §
2000e-z (1970), as amended, has given rise to a host of opinions relating to methods of testing
and selecting municipal and private employees. See, e.g.. Albemarle v. Moody, 422 U.S. 405
(1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971); E.E.O.C. Guidelines, 29 C.F.R. §
1607 (1974).

21. United States Department of Agriculture v. MurTy, 413 U.S. 508, 519 (1973) (Mar-
shall. J., concurring).

22. See Tnbe, Structured Due Process, 10 Harv. C.R.-C.L. L. Rev. 269 (1975); Note.
Irrebuttable Presumptions: An Illusory Analysis, 27 Stan. L. Rev. 449 ( 1975); Note, Irrebutt-
able Presumptions as an Alternative to Strict Scrutiny: From Rodriguez to La Fleur. 62 Geo.
L.J. 1173 (1974).

23. Mathews v. Eldridge, 424 U.S. 319. 344 (1976).

24. Crawford v. Cushman. 531 F.2d 1114, 1125 (2d Cir. 1976).

25. See L. Lusky, By What Right? 302 (1975).

26. See generally Developments in the Law— Class Actions, 89 Harv. L. Rev. 1319
(1976). Class actions, however, have obviously made some of the appellate courts nervous. Id.
at 1353. Cf Wallace v. Kern. 499 F.2d 1345 (2d Cir. 1974) (wholesale relief for hundreds of
prisoners held for excessive periods awaiting trial impermissible). See also Weinstein, Some
Reflections on the "Abusiveness" of Class Actions. 58 F.R.D. 299 (1973); The Suney of Sew
York Practice. 50 St. John's L. Rev. 179. 189-96 (1975).

27. See, e.g.. C. A. Wright, Law of Federal Courts 328 (2d ed. 1970).

28. See 28 U.S.C. 5 1407 (1970). A brief history of this legislation which created the
Judicial Panel on Multidistrict Litigation is set forth in Foreword, Manual for Complex
Litigation xvii-xix (1973) v»hich was prepared by a committee of federal judges in consulta-
tion with professors and members of the bar.

29. See. e.g., M. Rosenberg. J. B. Weinstein. H. Smit & H. Korn, Elements of
Civil Procedure ch. 15, 5 4 (1976).

30. See, e.g., United States v. Students Challenging Regulatory Agency Procedures. 412
U.S. 669 (1974); Sierra Club v. Morton, 405 U.S. 727 (1972) (dictum); Flast v. Cohen, 392

289

1976] COURT RULEMAKING 911

declined.32 Prospective overruling has reduced the burden of retroactivity,
and has allowed quantum jumps in the development of substantive and
procedural rights.33 Federal courts have asked state courts for advisory
opinions,34 and state courts have granted them with increasing frequency.35

Techniques for efficient large-scale adjudication have also been devel-
oped extrajudicially. Organizations such as the N.A.A.C.P. Legal Defense
Fund, the American Civil Liberties Union, and the Sierra Club are capable
of orchestrating the development of an entire area of the law, such as
desegregation of schools, capital punishment, abortion, the environment
and the like.36

The rulemaking power examined in this Article is consonant with
these other developments. It extends the reach of judicial power by pro-
moting judicial efficiency and by permitting a single decision — whether in
a case or by a rule — to have a wider impact.

I. Development of National Rulemaking Power

Procedures tend to be considered timeless by those who know no
other system. Present methods of formulating national rules, unchanged for
the past forty years, will be assumed by many to be writ in stone. A glance
back ever history is thus essential for understanding that options are
available. Much of the section that follows seeks to demonstrate that there
are no constitutional, theoretical or historical barriers to change.37

US. 83 (1968). See also L. Lusky. supra note 25. at 133: Davis. The Liberalized Law of
Standing. 37 U. Chi. L. Rev. 450 (1970); Jaffa. Standing Again. 84 Harv. L Rev. 633(1971).
Limitation of the "political issue" doctrine has closed off, to some extent, another escape
from federal court intervention. See, e.g.. Baker v. Can-, 369 U.S. 186. 208-37 (1962).

31. See. e.g.. Rosenbluth v. Finkelstein, 300 N.Y. 402. 404. 91 N.E.2d 581 (1950);
Annot., 132 A.L.R. 1185 (1941).

32. See, e.g.. Buckley v. Valeo, 424 U.S. I, 113-18 (1976).

33. See, e.g., Robinson v. Cahill, 62 N.J. 473. 303 A. 2d 273 (1973). rehearing as to
remedy. 67 N.J. 333. 339 A. 2d 193 (1975); Hicks v. New Mexico. 88 N.M. 588. 544 P. 2d 1153
(1976) (doctrine of immunity abolished for future cases onl>). See also L. Lusky, supra note
25. at 76-79.

34. American Law Institute. Study of the Division of Jurisdiction Between
State and Federal Courts 292-96 (1969).

35. See. e.g.. Governor v. State Treasurer. 389 Mich. I. 203 NW.2d 457 (1972). vacated
as improvident advisory opinion. 390 Mich. 389. 212 N.W.2d 71 1 (1973). For an analysis of the
use of advisory opinions in the states, see Comment. The State Advisory Opinion in Perspec-
tive. 44 Fordham L. Rev. 81 (1975).

The Supreme Court has been reluctant to render advisory opinions. See. e.g.. United
States v. Fruehauf, 365 U.S. 146. 157 (1961). and cases cited therein; Libertv-Warehouse Co.
v. Grannis, 273 U.S. 70 (1924). Cf Buckley v. Valeo. 424 U.S. I. 113-18 (1976) (finding of
substantial controversy admitting specific relief through a decree of conclusive character
distinguished the case from one requesting an advisory opinion and thus allowed the Court to
render a decision). Not all legal scholars are opposed to having the Supreme Court render
advisory opinions. See. e.g.. Aumann, The Supreme Court and the Advisory Opinion. 4 Ohio
St. L.J. 21 (1937); Note. Case for an Advisory Function in the Federal judiciary. 50 Geo.
L.J. 785 (1962): Note, Advisory Opinions on the Constitutionality of Statutes. 69 Harv. L.
Rev. 1302 (1956). But see Frankfurter, A Note on Advisory Opinions. 37 Harv. L. Rev. 1002
(1924).

36. J. Greenberg, Litigation for Social Change: Methods, Limits and Role in
Democracy (1973).

37. The historical development of rulemaking powers will be treated much more exten-

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912 COLUMBIA LAW REVIEW [Vol. 76:905

The extent and nature of the rulemaking power of federal courts is
inextricably interwoven with attitudes about the function of courts in
relation to other branches of government and about the limits of judicial
independence. The rulemaking power has, nevertheless, evolved through
pragmatic choices which have largely ignored the dilemmas posed by the
theoretical underpinnings of the judicial system.

A. Evolution of an Independent Federal Judiciary

The evolution of rulemaking power in the United States is intertwined
with the relation of courts to other branches of government. The extent of
judicial independence has a crucial bearing on the courts' role in rulemak-
ing, since it could be argued that a truly independent court system should
control its own procedural rules. In this country, the extent of judicial
independence in the rulemaking area has been, to a considerable degree, a
function of evolving doctrines of separation of powers and judicial review.

1. State Courts in the Colonial and Post-Revolutionary Eras. Insofar
as colonial opinion focused on the separation of powers, it was concerned
primarily with the division of authority between the executive and the
legislative branches, rather than with the extent of judicial power vis-a-vis
either of these branches. After the outbreak of the Revolution, all of the
states — proceeding from English theory, enlightenment thinking, and colo-
nial experience — enacted constitutions as fundamental laws that generally
reflected separation of powers doctrines.38 Distinctions between the judi-
ciary and other branches, however, were occasionally blurred;39 judicial
separation remained imperfect. The courts did, nevertheless, continue to
modify practice on a case-by-case basis without legislative intervention;
and stare decisis gave individual rulings substantial impact. Courts and the
bar were actively altering practice and procedure by interstitial changes to
meet the needs of a new society.40

sively and in greater depth in the author's forthcoming book. See note * supra. The book will
also discuss rulemaking practice in Great Britain, a subject beyond the scope of this Article.

38. In New York, for example, draftsmen of the 1777 Constitution placed power to check
the legislature in a Council of Revision rather than in the courts. The Council was empowered
to reject "improper" legislation, and such legislation could not become effective unless
two-thirds of each legislative house subsequently approved it. See I J. Goebel. Jr., History
of the Supreme Court of the United States 103-04 (1971). A number of states made
provision for an independent judiciary: Delaware, Maryland, Massachusetts, New Hampshire,
New York and North Carolina enacted provisions protecting' judges' tenure in office; Dela-
ware, Massachusetts, New Hampshire, Pennsylvania, North Carolina, South Carolina, and
Virginia insured judicial salaries against reduction. Id. at 98 n.9. In Virginia. John Marshall
pressed for a judiciary independent of executive restraints. See L. Baker, John Marshall,
A Life in Law 91 (1974).

39. Jefferson noted, for example,/ that on a number of occasions the Virginia Burgesses
had decided controversies better left to judicial determination. 4 The Works of Thomas
Jefferson, Notes on the State of Virginia 21 (Fed. ed. P.L. Ford 1904-05). The executive
branch in Pennsylvania usurped traditional judicial powers by committing persons to jail,
setting bail, and interfering with civil litigation and habeas corpus proceedings. See 1 J.
Goebel, Jr.. supra note 38 at, 99 n.14 (1971). The Supreme Judicial Court's duty to render
advisory opinions was a part of the Massachusetts Constitution. Mass. Const, ch. 3, art. 2
(1780).

40. See, e.g.. Nelson, The Reform of Common Law Pleading in Massachusetts 1760-
1830: Adjudication as a Prelude to Legislation. 122 U. Pa. L. Rev. 97 (1973).

291

1976] COURT RULEMAKING 913

2. The Constitutional Period.

a. The Philadelphia Convention. The concept of separation of powers,
acquired either through reading of enlightenment theory or colonial experi-
ence, was "axiomatic in contemporary political thinking," and almost
universally shared by the framers of the Constitution.4' Although this
attitude governed the evolution of the articles on the legislative and execu-
tive branches, it was less clearly applied by the framers to the judiciary,
largely because there were few precedents for truly separate and indepen-
dent courts.

Convention consideration of a. framework for the judicial branch fo-
cused initially on the "Virginia Plan," which proposed, inter alia, a system
of independent federal courts, supreme and inferior, that was national in
scope.42 Opposed to this scheme was the "Paterson Plan," a proposal
uhich envisioned a supreme court of very limited jurisdiction and no
inferior federal courts. The Virginia Plan was eventually adopted, although
several elements of Paterson's plan and another similar formulation were
retained.

At the close of the first debates on the judiciary, the delegates unani-
mously approved a resolution which stated that federal legislation would
override any conflicting state laws, and that, as a result, the state judiciary
would have to enforce this supremacy.43 Judicial control over state enact-
ments in conflict with federal laws provided a conceptual springboard to
judicial control over congressional enactments conflicting with the Con-
stitution. This final leap was in large part made in the final weeks of the
convention during the debate over the Supremacy Clause.44 Although only
seventeen of the fifty-ftve delegates at the Convention stated that federal
courts were empowered to pass on the constitutionality of congressional
acts, this group was comprised of

fully three-fourths of the leaders of the Convention, four of the
five members of the Committee of Detail which drafted the Con-
stitution, and four of the five members of the Committees of Style
which gave the Constitution final form. . . . [They were] men who
expressed themselves on the subject of judicial review because
they also expressed themselves on all other subjects before the
Convention. They were the leaders of that body and its articulate
members.45

The Philadelphia Convention had conceived a judiciary of unprece-
dented power and independence. It might include a system of inferior
courts as well as a Supreme Court; it was explicitly empowered to review

41. See 1 J. Goebel. Jr.. supra note 38, at 204.

42. Documents Illustrative of the Formation of the Union of the American
States, H.R. Doc. No. 398. 69th Cong.. 1st Sess. 955 (C.C Tansill ed. 1927).

43. II The Records of the Federal Convention of 1787. at 22 (M. Farrand ed.
1966).

44. See I J. Goebel. Jr.. supra note 38. at 241.

45. E. Corwiv. The Doctrine of Judicial Review 11-12 (1914).

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914 COLUMBIA LAW REVIEW [Vol. 76:905

actions of the state courts; and it was implicitly empowered to review the
constitutionality of acts of Congress. Additional provisions protecting
judges' salaries and tenure and establishing the dimensions of federal juris-
diction further emphasized the judiciary's autonomous power.

b. The Federalist Papers. The five Federalist Papers dealing with the
Judiciary, Numbers 78 to 82, further stressed the themes of judicial inde-
pendence and authority. Federalist Number 78 formed the conceptual heart
of Hamilton's attitude toward the judiciary: "The complete independence
of the courts of justice is peculiarly essential in a limited constitution."*6
Arguing for judicial review of legislation's constitutionality, he denied that
such review made the courts more powerful than the legislature: "[w]here
the will of the legislature declared in its statutes, stands in opposition to
that of the people declared in the constitution, the judges ought to be
governed by the latter rather than the former."47 Because of this crucial
role performed by the courts, Hamilton urged that their independence be
carefully protected.

c. State Ratification Debates. State debates over the adoption of the
Federal Constitution centered on antifederalist fears that centralized execu-
tive and legislative powers would operate to the detriment of the powers of
states and the rights of individuals; they dealt only infrequently with the
judicial branch.48 Professor Main concludes:

[M]ost Antifederalists were satisfied with all or with the greater
part of the judiciary article; the need for a national court system
was nowhere challenged and most of its powers were accepted
without question.49

B. Advisory Opinions

The degree to which the independence and authority of the federal
judiciary were taken for granted seemed to indicate that there would be
minimal opposition to judicial rulemaking. But the courts themselves
created doubt as to whether they could make rules outside the context of a
particular lawsuit by defining doctrines such as the advisory opinion
rule — if the courts* adjudicative power must be limited to a particular case
or controversy, it might be argued that their rulemaking power must be
similarly circumscribed. The development of the advisory opinion rule thus
provides a useful model for exploring judicial independence and its relation
to rulemaking after the adoption of the Constitution.

46. The Federalist No. 78. at 491 (B. Wright ed. 1961) (A. Hamilton).

47. Id. at 492.

48. For a discussion of debates on Article III in the states, see I J. Goebel, Jr.. supra
note 38. at 280-91.

49. J. T. Main. The Antifederalists: Critics of the Constitution, 1781-1788. 158
(1961).

293

19761 COURT RULEMAKING 915

In July, 1793. Thomas Jefferson, then Secretary of State, wrote a
lengthy letter to Chief Justice John Jay and the Associate Justices of the
Supreme Court seeking their advice.50 On August 8, 1793, the Justices
replied, refusing to give extra-judicial advice.51 The Justices placed the bar
against rendering advisory opinions to other branches on the strongest
conceptual ground: the constitutional requirement of separation of powers.
Since judicial rulemaking also involves at its heart a question of the appro-
priate division of roles among the three branches, it is necessary to con-
sider whether judicial rulemaking is at odds with the traditional reluctance
of the courts to render advisory opinions.

One is led to conclude that rulemaking is only partially controlled by
the advisory opinion doctrine. Like advisory opinions, rulemaking occurs
outside the focus of a case or controversy. In a sense rulemaking raises the
same separation of powers issue that is at the heart of the ban on advisory
opinions, since rulemaking solely by courts would represent an infringe-
ment on legislative power to make general laws for the structure of all
governmental processes, including those of the courts.

However, there has never been a fully compartmentalized separation
of powers. As Justice Tom Clark has candidly observed, "[T]here is much
commingling, intermingling, and meddling among the three branches of
federal government."52 Chief Justice Burger has termed the view that the

50. The letter read in part:

The war which has taken place among the powers of Europe produces frequent

transactions within our ports and limits, on which questions arise of considerable

difficulty, and of greater importance to the peace of the United States. These

questions depend for their solution on the construction of our treaties, on the laws of

nature and nations, and on the laws of the land, and are often presented under

circumstances which do not give a cognizance of ihem to the tribunals of the

countrv. . . . The President therefore would be much relieved if he found himself free

to refer questions of this description to the opinions of the judges of the Supreme

Court of the United States, whose knowledge of the subject would secure us against

errors dangerous to the peace of the United States, and their authority insure the

respect of al! parties. . .

3 Johnston Correspondence and Public Papers of John Jay 486 (1891), reprinted in P.

Bator P Mishkin. D. Shapiro & H. Wechsler. Hart &. Wechslers The Federal

Courts and the Federal System 64 (2d ed. 1973) (emphasis in original) [hereinafter cited

as Hart & Wechsler). Earlier, the Chief Justice had rejected a request for support from

Jefferson's political foe. Secretary of the Treasury Hamilton. See Dilliard. Join Jay, in 1 The

Justices of the United States Supreme Court 13-14 (L. Friedman &. F. Israel eds. 1969).

51. The letter to President Washington read in part:

We have considered the previous question stated in a letter written by your
direction to us by the Secretary of State on the 18th of last month, [regarding] the
lines of separation drawn by the Constitution between the three departments of the
government. These being in certain respects checks upon each other, and our being
judges of a court in the last resort, are considerations which afford strong arguments
against the propnetv of our extrajudicially deciding the questions alluded to. espe-
cially as the power given by the Constitution to the President, of calling on the heads
of departments for opinions, seems to have been purposely as well as expressly
united to the executive departments. .

3 Johnston. Correspondence and Public Papers of John Jay 488 (1891), reprinted in
Hart & Wechsler. supra note 50, at 65-66 (emphasis in original).

52 Clark Separation of Powers. 11 Willamette LJ. 1 (1974). See also Levi, Some
Aspects of Separation of Powers, 76 Colum. L. Rev. 371. 391 (1976) ("The branches of
government were not designed to be at war with one another. The relationship was not to be

294

916 COLUMBIA LAW REVIEW [Vol. 76:905

legislative and judicial branches should not talk to each other "a naive
position not consistent with our constitutional system. "$J The Supreme
Court similarly remarked in Buckley v. Valeo54 that the draftsmen of the
Constitution "saw that a hermetic sealing off of the three branches of
Government from one another would preclude the establishment of a Na-
tion capable of governing itself effectively." Judicial independence cannot
be absolute. Against the background of this scheme of government the
advisory opinion analogy is not sufficiently precise: the rulemaking power
is more legislative than advisory and falls within that twilight area created
by practical necessity where activities of the separate branches merge.55

C. Historical Origins of the Rulemaking Power of Federal Courts

Without any express discussion of the theoretical separation of powers
dilemma posed by the rulemaking power, both Congress and the courts
adopted a purely pragmatic solution to the issue of who should control
rulemaking. In the Judiciary Act of 178956 and the Process Acts of 1789,57
1792, 58 and 1793,59 a delegation theory was implemented, under which
Congress assumed ultimate authority but gave the courts substantial power
to adopt rules within a broad procedural outline.

1. The Judiciary Act of 1789. Much of article III of the Constitution
was not self-enacting, but simply provided authority for implementing
legislation. The Judiciary Act of 178960 was the first example of this
extensive legislation. Section 17 of the Act empowered the several federal
courts to establish their own rules "for the orderly conducting [of] busi-
ness." The Act itself limited the extent of the courts' discretion to make
rules by detailing a number of basic procedural requirements, but, as a
whole, it recognized that courts would play a crucial role in shaping the law
through common law judicial decision. The Act's direction, for example,
that all writs, including non-statutory writs, be issued in accord with
"principles and usages of law," underlined the courts* inherent procedural
and rulemaking powers. Similarly, the courts were authorized to make

an adversary one. though to think of it that way has become fashionable."); Address by Judge
Henry Friendly, Bicentennial Lecture Series, Jan. 29, 1976.

53. U.S. News & World Report, March 31, 1975. at 28, col. 1. See also [1974] Cal.
Judicial Council. Annual Rep. to Governor, ch. 1 (pointing out the need to restructure
the California Council on Criminal Justice to permit the judiciary to participate in planning
criminal justice programs).

54. 424 U.S. 1, 121 (1976).

55. Cf. Levi, supra note 52. at 372 (discussing the ambiguities of the separation of powers
doctrine from a historical perspective).

56. Act of Sept. 24. 1789. ch. 20, 1 Stat. 73.

57. Act of Sept. 29. 1789. ch. 21. 1 Stat. 93.

58. Act of May 8, 1792. ch. 36. 1 Stat. 275.

59. Act of March 2, 1793, ch. 22. 1 Stat. 333. The historical materials are collected in
Hart & Wechsler, supra note 50, at 663. See also Goldberg. The Supreme Court, Congress
and the Rules of Evidence, 5 Seton Hall L. Rev. 667 (1974).

60. Act of Sept. 24. 1789. ch. 20. 1 Stat. 73.

295

1976] COURT RULEMAKING 917

judgments "according as the right of the cause and matter in law shall
appear unto them."61

Although in retrospect many of the Act's provisions seem a brilliant
selective amalgam of varied state procedures, contemporary opinion was
uneasy over some of the Act's imperfections. Kiadison, for example, hoped
that the judges would subsequently reconsider and revise the Act.62 His
view probably reflected a contemporary attitude that implied power to
design court procedures rested in the courts as well as in Congress.

2. The Process Acts. "An Act to regulate Processes in the Courts of
the United States"63 emerged late in 1789 from the same committee and
Congress that had brought forth the earlier Judiciary Act. Although the
Process Act was intended to establish the forms of process in the federal
courts, through its subsequent revisions it had an impact on the powers of
courts to set rules. Congress undertook revision of the 1789 Process Act in
1792. The version of the bill which was eventually enacted provided that
equity, common law, and admiralty proceedings were

subject ... to such alterations and additions as the [federal] courts
respectively shall in their discretion deem expedient, or to such
regulaoons as the supreme court of the United States shall
think proper from time to time by rule to prescribe to any circuit
or district court concerning the same. . . .M

In 1793 the courts' rulemaking power was again considered. To a
Senate bill concerning the structure of the circuit courts, the House added
a section shifting the power to make rules for practice from federal courts
as a whole to the Supreme Court alone. The Senate apparently considered
this too great a departure from previous policy and changed the language of
the section to place rulemaking power in "the several Courts of the United
States."65

The law enacted in 179366 continued the tendency of the 1792 Process
Act to relax legislative control over rulemaking and to expand the courts'
powers in that area. Although Congress retained the power to intervene to
formulate rules of practice and procedure,67 the practical authority to
formulate rules had shifted to the courts.68 In the following section, the
development of particular sets of federal rules will be explored.

61. Id. § 32.

62. I J. Goebel. Jr.. supra note 38, at 508. (citing letter of Madison to Pendleton of Sept.
14, 1789, Ms. Madison Papers XII, 30 (Library of Congress)).

63. Act of Sept. 29. 1789. ch. 21. 1 Stat. 93.

64. Act of May 8. 1792. ch. 36. § 2, 1 Stat. 275.

65. Act of March 2. 1793, ch. 22. § 7, I Stat. 333.

66. Id.

67. The bill provided in part that "it shall be lawful for the several courts of the United
States ... to make rules ... in a manner not repugnant to the laws of the United States." Id.

68. The placing of basic rulemaking power in the courts by the Process Act of 1793 was
sweepingly reaffirmed in the Act of August 23, 1842. which provided:

That the Supreme Court shall have full power and authority, from time to time, to

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918 COLUMBIA LAW REVIEW [Vol. 76:905

D. Evolution of Present Federal Procedural Rules

Currently, the Supreme Court and the lower federal courts are given
general authority to establish rules for the conduct of their own business by
section 2071 of title 28 of the United States Code. The Supreme Court
possesses specific authority to prescribe rules of procedure for lower fed-
eral courts in bankruptcy cases,69 in other civil cases,70 and in criminal
cases,71 and to revise the rules of evidence.72 This statutory framework is
relatively young.

1. Federal Equity Rules. Equity was formerly viewed as distinct from
law. Because equity was largely undeveloped in the states, section 34 of
the Judiciary Act of 178973 was not made applicable to federal equitable
actions. As a result, equity procedure developed without substantial
pressures to conform with state procedures, and the Supreme Court pos-
sessed considerable freedom in equity rulemaking.

The Court, however, waited to exercise its power until 1822, when it
issued thirty-three equity rules.74 In 1842, the Supreme Court issued a
revised set of ninety-two equity rules.75 Long after the 1842 rules had
become obsolete, the Supreme Court undertook a systematic revision,
culminating in the Equity Rules of 1912. 76 Finally, in 1938, law and equity
were merged in the federal courts by the superseding Federal Rules of Civil
Procedure.77

2. Admiralty Rules. The Process Act of 178978 provided that admiralty
proceedings should be conducted "according to the course of the civil

prescribe, and regulate, and alter, the forms of writs and other process to be used and
issued in the district and circuit courts of the United States, and the forms and modes
of framing and filing libels, bills, answers, and other proceedings and pleadings, in
suits at common law or in admiralty and in equity pending in the said courts, and also
the forms and modes of taking and obtaining evidence, and of obtaining discovery,
and generally the forms and modes of proceeding to obtain relief, and the forms and
modes of drawing up, entering, and enrolling decrees, and the forms and modes of
proceeding before trustees appointed by the court, and generally to regulate the
whole practice of the said courts, so as to prevent delays, and to promote brevity and
succinctness in all pleadings and proceedings therein, and to abolish all unnecessary
costs and expenses in any suit therein.
Act of Aug. 23. 1842. ch. 188. § 6, 5 Stat. 516. See also 13 Rev. Stat. §§ 913, 917, 918 (1878).

69. 28 U.S.C. § 2075 (1970).

70. 28 U.S.C. § 2072 (1970).

71. 18 U.S.C. §§ 3771. 3772 (1970).

72. 28 U.S.C. § 2076 (Supp. V, 1975).

73. Act of Sept. 24. 1789. ch. 20, § 34, I Stat. 73. See text accompanying note 91 infra.

74. 20 U.S. (7 Wheat.) v (1822).

75. 42 U.S. (1 How.) xli (1842).

76. 226 U.S. 627 (1912).

77. For a discussion of the development of the Equity Rules, see Hart & Wechsler,
supra note 50, at 664-65. See also Griswold & Mitchell. The Narrative Record in Federal
Equirx Appeals. 42 Harv. L. Rev. 483 (1929); Lane, Federal Equity Rules. 35 Harv. L.
Rev. 276 (1922); Payne. Counterclaims Under New Federal Equirv Rule 30. 10 Va. L. Rev.
598 (1924); Talley, The New and Old Federal Equity Rules Compared. 18 Va. L. R£v. 663
(1913) (discussing practice under old, pre-merger rules).

The merger of law and equity had begun to take place in the states ninety years earlier as
a result of legislative, not court, initiative. See. e.g.. J. Weinstein, H. Korn & A. Miller,
New York Civil Practice 1 103.01.

78. Act of Sept. 29. I789, ch. 2l, § 2. I Stat. 93.

297

1976] COURT RULEMAKING 919

law." With the Process Act of 1792, this stop-gap measure was replaced by
a provision that admiralty proceedings were to be conducted "according to
the principles, rules and usages which belong . . .' to courts of admiralty. . . ,
as contradistinguished from courts of common law."79

From 1792 until 1844, the Supreme Court failed to exercise its admir-
alty rulemaking power and left the field to conflicting rules developed by
district courts. Finally, drawing impetus from the reaffirmation of the
rulemaking power in the Act of August 23, 1842,80 the Supreme Court
issued forty-seven admiralty rules in 1844;81 these rules were not a com-
prehensive codification but were clarifications of, and additions to, tradi-
tional admiralty practice. In 1921 they were extensively revised.82 In 1966,
admiralty procedure was merged with civil procedure;83 the Federal Rules
of Civil Procedure are now applicable to admiralty as well as civil cases.84

3. Bankruptcy Rules. Article I, section 8 of the Constitution grants
Congress the power "To establish . . . uniform laws on the subject of
bankruptcies throughout the United States." Current bankruptcy laws are
the product of an Act of July 1, 1898,85 a major revision undertaken in
1938,86 and approximately one hundred amendments to these acts.87

Shortly after passage of the Act of July 1, 1898, the Supreme Court
formulated rules for bankruptcy proceedings.88 The rules were frequently
amended and were systematically revised in 1939. 89 They were again sub-
stantially revised in recent years pursuant to proposals of an Advisory
Committee.90

4. Federal Rules of Civil Procedure. Section 34 of the Judiciary Act of
1789 provided:

That the laws of the several states, except where the constitution,
treaties, or statutes of the United States shall otherwise require or
provide, shall be regarded as rules of decision in trials at common
law in the courts of the United States in cases where they apply.91

This "Rules of Decision Act" left it unclear whether state law was to
govern procedure. The problem was remedied by the subsequent Process

79. Act of May 8. 1792. ch. 36, § 2, 1 Stat. 275.

80. Act of Aug. 23, 1842, ch. 188. § 6, 5 Stat. 516.

81. 44 U.S. (3 How.) iii (1844).

82. 254 U.S. 671 (1921).

83. 383 U.S. 1029 (1966).

84. The Federal Rules of Civil Procedure do contain a supplemental list of special
admiralty rules. See Fed. R. Civ. P. 9(h), 14(a). 14(c), 38<e). 82, and Supp. Rules A-F. Prize
proceedings are governed by 10 U.S.C. §§ 7651-81 (1970). pursuant to Fed. R. Civ. P. 81(a).
See generally Hart & Wechsler, supra note 50, at 666-67.

85. Act of July 1, 1898, ch. 541, 30 Stat. 544.

86. Act of June 22, 1938, ch. 575. 52 Stat. 840 (Chandler Act).

87. The bankruptcy laws are compiled in title 1 1 of the United States Code.

88. 172 U.S. 653 (1898).

89. 305 U.S. 677 (1939).

90. % S. Ct.. rule amendments at 1 (July 1, 1976) (Chapter VIII); % S. Ct., rule
amendments at 43 (June 1, 1976) (Chapter IX); 421 U.S. 1019 (1975) (Chapters X and XII); 415
U.S. 1003 (1974) (Chapter XI); 411 U.S. 989 (1973) (Chapters 1-VIII).

91. Act of Sept. 24, 1789, ch. 20, § 34, 1 Stat. 73.

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920 COLUMBIA LAW REVIEW [Vol. 76:905

Act of 1789, which required federal courts to follow, in actions at law, state
procedure in effect at the time of the passage of the Act.92 The Process Act
of 1792 ratified this provision but made it subject to the rulemaking power
of the Supreme Court and lower federal courts.93

While the Judiciary Act of 1789 dictated a dynamic conformity for
substantive law, the Process Act of 1792 imposed a static conformity for
procedural law. The courts did not exercise their rulemaking powers to
alleviate this awkward situation. By the Conformity Act of June 1, 1872,94
Congress replaced the rule of static conformity for procedure with dynamic
conformity, and withdrew the theretofore unused judicial rulemaking
power over procedure in actions at law.95

Despite the Conformity Act, distinctive federal practices began to
emerge.96 A sense that necessary procedural reform could be accomplished
only by court rules drafted by judges and lawyers led to a movement for
uniform federal procedural rules for civil cases.97 This movement culmi-
nated, in 1934, in the passage by Congress of an act empowering the
Supreme Court

to prescribe, by general rules, for the district courts of the United
States and for the courts of the District of Columbia, the forms of
process, writs, pleadings, and motions, and the practice and pro-
cedure in civil actions at law."

Chief Justice Hughes led the Supreme Court in responding promptly to
the rulemaking mandate.99 In 1935, the Court issued a formal order ap-
pointing an Advisory Committee composed of eminent members of the
legal profession.100 The Advisory Committee's proposed rules received
extensive evaluation and criticism by special bar and judicial committees.
Its final proposals were approved with minor changes by the Supreme
Court, and became effective on September 16, 1938. 101 The rules were
subsequently amended with the assistance of the Advisory Committee.102
In 1958 Congress ordered the Judicial Conference of the United States to

carry on a continuous study of the operation and effect of the

92. Act of Sept. 29, 1789, ch. 21. § 2, 1 Stat. 93.

93. Act. of May 8, 1792. ch. 36, § 2, 1 Stat. 275. See also Act of March 2. 1793. ch. 22. §
7. I Stat. 333.

94. Act of June I, 1872. ch. 255. 17 Stat. 196.

95. Id. § 5.

96. See Herron v. Southern Pacific, 283 U.S. 91 (1931); McDonald v. Pless. 238 U.S. 264
(1915); Hearings on S. 2061 Before a Subcomm. of the Senate Comm. on the Judiciary, 68th
Cong.. 1st Sess. 54 (1924) (remarks of Sutherland. J.); Clark & Moore. A New Federal Civil
Procedure, 44 Yale L.J. 387. 401-11 (1935).

97. See Sunderland. The Grant of Rule-Making Power to the Supreme Court of the
United States, 32 Mich. L. Rev. 1116 (1934).

98. Act of June 19. 1934, ch. 651, 48 Stat. 1064.

99. 13 ALI Proceedings 61 (1935-1936).

100. Appointment of Comm. to Draft Unified System of Equity and La». ...les, 295
U.S. 774 (1935).

101. 308 U.S. 645 (1938).

102. 341 U.S. 959 (1951); 335 U.S. 919 (1948); 329 U.S. 839 (1947); 308 U.S. 642(1939).

299

1976] COURT RULEMAKING 921

general rules of practice and procedure now or hereafter in use as
prescribed by the Supreme Court for the other courts of the
United States pursuant to law.103

5. Federal Rules of Criminal Procedure. Prior to the promulgation of
federal rules, federal criminal procedure was no more than an unwieldy
conglomeration of common law practice, constitutional requirements, ad
hoc legislation, and references to state laws.104 Congress initially sought to
resolve difficulties regarding procedure after verdict, and in 1933 au-
thorized the Supreme Coilrt to devise rules for this area.105 In 1940,
Congress expanded the Court's authority by allowing it to draft rules for
criminal proceedings prior to and including the verdict.106 The resulting
Federal Rules of Criminal Procedure became effective in 1946,107 and have
since been amended several times.108

6. Federal Rules of Appellate Procedure. In 1968, rules concerning
appeals were severed from those applicable to trial procedure. A separate
set of Rules of Appellate Procedure was promulgated pursuant to an advi-
sory committee's recommendations.109

7. Federal Rules of Evidence. In early years there had been consider-
able confusion about "whether given evidence questions were to be de-
cided in accordance with the Competency of Witnesses Act, the Rules of
Decision Act, the Conformity Act . . . , or some other standard."110 It was
not until 1942 that the American Law Institute's Model Code of Evidence
was formally adopted, and not until 1953 that the Commissioners on Uni-
form State Laws promulgated the Uniform Rules of Evidence. Relying in
part on the availability of these models and on the need for clarification and
improvement of the federal law of evidence, critics increased pressure for
federal rules.1 " Shortly thereafter, a Special Committee on Evidence ap-
pointed in 1961 n2 by the Chief Justice concluded that the rulemaking
"power conferred by . . . enabling acts of Congress "uy permitted prom-

103. 28 U.S.C. § 331 (1970). See also Clark. The Role of the Supreme Court in Federal
Rule-Making. 46 J. Am. Jud. Soc*y 250, 253 (1963).

104. Hart & Wechsler, supra note 50. at 667.

105. Act of February 24. 1933. ch. 119. 47 Stat. 904. as amended. Act of March 8. 1934.
ch. 49. 48 Stat. 399. reenacted. 18 U.S.C. § 3772 (1970).

106. Act of June 29. 1940. ch. 445. 54 Stat. 688. reenacted. 18 U.S.C. § 3771 (1970).

107. 327 U.S. 821 (1946).

108. See 96 S. Ct.. rule amendments at I (June I, 1976); 419 U.S. 1133 (1975); 416 U.S.
1001 (1974); 415 U.S. 1056 (1974); 406 U.S. 979 (1972); 401 U.S. 1025 (1971); 389 U.S. 1125
U966); 383 U.S. 1087 (1966); 350 U.S. 1017 (1956); 346 U.S. 941 (1954); 335 U.S. 917. 949
(1948).

109. 389 U.S. 1063 (1968).

110. Comm. on Rules of Practice and Procedure of the Judicial Conference
of the United States, A Preliminary Report on the Advisability and Feasibility
of Developing Uniform Rules of Evidence for the United States District Courts
3 (Feb. 1962) (footnotes omitted) [hereinafter cited as Preliminary Report on Evidence).

111. See. e.g., Estes, The Need for Uniform Rules of Evidence in the Federal Courts. 24
F.R.D. 331 (1960); Report of the Special Comm. on Uniform Evidence Rules for Fed. Cts. to
the House of Delegates, American Bar Association, 44 A.B.AJ. 1113 (1958); Green, The
Admissibility of Evidence Under the Federal Rules. 55 Harv. L. Rev. 197. 225 (1941).

112. Preliminary Report on Evidence, supra note 110, at 2.

113. Id. at 29 (emphasis added).

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922 COLUMBIA LAW REVIEW [Vol. 76:905

ulgation of rules of evidence,"4 and recommended that the Supreme Court
formulate such rules. ns The Federal Rules of Evidence were finally
approved by Congress in 1975, after years of work and controversy. Pro-
fessor Geary has noted that "[t]he rules as finally enacted are the joint
product of the rulemaking process as evolved by the Supreme Court and
the legislative process as conducted by the two houses of the Congress."116
In sum, the national rulemaking experience demonstrates no rigidity in
doctrine or practice. While changes in the process of rulemaking have often
lagged behind the need for change, lethargy more than ideology has been
responsible for outmoded practice in rulemaking. There are now clear
signals that further changes are needed in the way rules for courts are
developed.

III. Ideology Succumbs to Practicality:

Courts and Legislature Both Have a Role

in Rulemaking

As demonstrated above, the history of rulemaking at the federal level
shows a practical accommodation between the legislature and the courts.
There have been serious suggestions, however, that the legislature can
have no role in rulemaking. Generally this claim has been ignored by those
charged with the practical task of running government. Recent history in
New Jersey and elsewhere is instructive.

A. The New Jersey Experience

The New Jersey Supreme Court under Chief Justice Vanderbilt, relying
on a state constitutional provision granting rulemaking power to the
courts, n7 took the position in Winberry v. Salisbury11* that its rulemaking
power was not subject to legislative control: a rule would stand even if it
were inconsistent with a subsequently adopted statute.119 In support of its
position, the New Jersey court pointed to the "intolerable" conflict that
would result if its overruling of a statute by court-made rule were followed

114. Id. at 32 n.125. 35 n.138.

115. Id. at 48-54.

116. Geary, Preface to Fed. R. Evid., at v (Federal Judicial Center ed. 1975).

117. N.J. Const, art. VI. § 2, H 3: "The Supreme Court shall make rules governing the
administration of all courts in the State and, subject to law, the practice and procedure in all
such courts."

118. 5 N.J. 240, 74 A.2d 406, cert, denied. 340 U.S. 877 (1950).

119. Id. at 255, 74 A. 2d at 414. The New Jersey court continues to cite Winberry with
approval. See American Trial Lawyers v. New Jersey Supreme Court. 66 N.J. 258. 262, 330
A. 2d 350, 352 (1974) (contingent fees); Columbia Lumber & Millwork Co. v. New Jersey
Supreme Court, 12 N.J. 1 17, 95 A. 2d 914 (1953) (Winberry applied to hold a statute in conflict
with a court rule invalid). The decision is examined in Kaplan & Greene, The Legislature's
Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury, 65 Harv. L. Rev.
234 (1951) and Pound, Procedure Under Rules of Court in New Jersey. 66 Harv. L. Rev. 28
(1952). For a discussion of issues raised by Winberry, see Levin & Amsterdam, Legislative
Control Over Judicial Rulemaking: A Problem in Constitutional Revision, 107 U. Pa. L.
Rev. 1 (1958); Note, 27 Rutgers L. Rev. 345 (1974).

301

1976] COURT RULEMAKING 923

by legislative readoption of the statute, and, in turn, judicial readoption of
the rule.120 But as Professor (now Judge) Kaplan and his associate, Greene,
have pointed out, the problem is not insoluble given the assumption "that
court and legislature will exhibit a decent amount of mutual respect and
tolerance. "m

The New Jersey position in Winberry is almost unique. Other courts
have taken what Kaplan and Greene refer to as "the circumspect ap-
proach"122 in working cooperatively with the legislature.123 The majority
approach seems the wiser one; so long as the legislature is not seeking to
destroy a court's power to act effectively, statutes should supersede rules.
The Anglo- American experience with rulemaking demonstrates no need for
the courts to have unfettered control over procedure through rulemaking.
Should a legislature's acts deny due process or infringe other constitution-
ally protected rights, the courts have reserve adjudicative powers to strike
down the offending legislation.124

There has been in the last fifty years "a growing recognition of the
soundness of the policy of vesting comprehensive rule-making power in the
courts, with accountability in the last analysis in the legislature."125 No
serious student of the subject would today accept Wigmore's thesis that the
legislature has no power to effect judicial procedure.126

New Jersey's near-fiasco over rules of evidence shows why the ab-
solutist attitude of Justice Vanderbilt and a few others on the issue of
procedural rules cannot be sustained. In 1954, the Supreme Court of New
Jersey appointed an advisory committee to study the Uniform Rules of
Evidence which had just been approved by the American Bar Association.
That committee published its report in May, 1955, comparing the Uniform
Rules with existing New Jersey evidence law, making recommendations for
amendments, and calling for adoption.127 In October of that year the
legislature appointed a special commission to study the Uniform Rules and
make recommendations. Its report was issued in November, 1956. l28

As a result of the conflict between the branches over whether the rules
should be adopted by the state supreme court pursuant to its constitutional
authority to regulate practice and procedure,129 or by the legislature in the

120. 5 N.J. at 244. 74 A.2d at 408.

121. Kaplan &. Greene, supra note 119, at 247.

122. Id. at 247 n.60.

123. See. e.g., Grant v. Curtin. 71 A.2d 304 (Md. Ct. App. 1950).

124. See. e.g.. Sniadach v. Family Finance Corp.. 395 U.S. 337 (1969) (statutory garnish-
ment proceedings invalid).

125. Kaplan & Greene, supra note 119. at 251.

126. Wigmore. All Legislative Rules for Judiciary Procedure are Void Constitutionally,
23 III. L. Rev. 276 (1928). reprinted in 20 J. Am. Jud. Soc'y 159 (1936). See Pound, The
Rule Making Power of the Courts. 12 A. B.A.J. 599, 600 (1926).

127. Report of the Comm. on the Revision of the Law of Evidence to the
Supreme Court of New Jersey (1955).

128. Report of the Comm'n to Study the Improvement of the Law of Evidence
of the Senate and General Assembly of the State of New Jersey (1956).

129. N.J. Const, art. VI, § 2. 11 3. The text of this provision is set forth in note 117
supra.

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924 COLUMBIA LAW REVIEW [Vol. 76:905

form of a statute,130 action on the evidence rules was stalled for the next
several years. At the heart of this dispute, of course, was the position taken
by the court in Winberry.

After Chief Justice Vanderbilt died, his successor, Chief Justice Wein-
traub, met with legislative leaders to work out a practical compromise.
Pursuant to their agreement, the New Jersey Evidence Act of 1960 was
adopted.131 The Act included the rules of privilege and a modified Dead
Man statute, and provided detailed procedures authorizing the supreme
court to adopt the remaining rules of evidence. One provision required that
proposed rules be presented, before adoption, to a judicial conference at
which the various courts and bar associations, the legislature, the Attorney
General, county prosecutors, law schools and "members of the Public"
would be represented.132

As part of the arrangement between the chief justice and legislative
leaders, the Supreme Court of New Jersey appointed a second advisory
committee in 1960. The rules proposed by the advisory committee were
adopted by the supreme court in 1964 to become effective, pursuant to the
provisions of the Act, in 1965. 133 However the legislature, through a series
of amendments, delayed the effective date to 1967. 134

It is interesting that after enactment of the rules of evidence the New
Jersey legislature created a "Permanent State Rules of Evidence Review
Commission," consisting of members of the legislature and private citi-
zens, to advise the legislature with respect to future proposed changes in
the rules.135 The Commission's title was later amended to substitute the
word "Court" for "Evidence,"136 suggesting that the Winberry case was
subject to still further erosion. In effect, New Jersey seems to be approach-
ing much the same practical balance in rulemaking as other American
jurisdictions; although commentators still talk of "complete" rulemaking

130. See, e.g.. How Shall the Proposed Code of Evidence be Adopted, 78 N. J.L.J. 316
(1955); Report on Manner of Adopting Proposed Evidence Code, 78 N.J. L.J. 349 (1955)
(reporting suggestion of Essex County Bar Association that the legislature, and then the
court, adopt the same provisions as a way out of the impasse); Kean, An Analysis of the
Report of the Legislative Commission to Study the Improvement of the Law of Evidence, 79
N J.L.J. 473 (1956); Evidence Revision by Cooperation, 79 N J.L.J. 4% (1956) (editorial
calling for cooperation); Vanderbilt Critical of Evidence Bill, 80 N.J. L.J. 213 (1957); Bigelow
Urges Codification of Evidence Rule, 80 N.J.L.J. 205 (1957); Statement by Josiah Stryker at
Legislative Hearing on Evidence Revision, 80 N.J.L.J. 211 (1957); Milton Submits Comments
on Evidence Revision. 80 N.J.L.J. 241 (1957); Codification of Evidence Law Favored by
Unanimous Vote. 80 N.J.L.J. 253 (1957); Statement of Milton T. Lasher. President. New
Jersey State Bar Association. Concerning the Proposed Evidence Code. 80 N.J.L.J. 269
(1957) See also Morgan, Practical Difficulties Impeding Reform in the Law of Evidence, 14
Vand. L. Rev. 725. 736 (1961); Brooks. Evidence. 14 Rutgers L. Rev. 390. 391-92 (1960).

131. L. I960, c. 52, p. 461, § 33 (codified at N.J.S.A. 2A:84A-33 (West 1976)).

132. N.J.S.A. 2A:84A-34 (West 1976).

133. N.J.S.A. 2A:84A-35 (West 1976).

134. See generally L. 1965. c. 56. § 2, as amended by L. 1966, c. 184. § 2; L. 1967. c. 3. J
1 (codified at N.J.S.A. 2A: 84A-35 (West 1976).

135. L. 1968, c. 183. 5 I. eff. July 19. 1968 (codified at NJ.S.A. 2A:84A-39.1 (West
1976)).

136. L. 1970, c. 258. § 2. eff. Nov. 2, 1970 (codified at NJ.S.A. 2A:84A-39.1 (West
1976)).

303

1976] COURT RULEMAKING 925

power not subject to subsequent action by the legislature,'37 the concept is
essentially illusory.'38

B. Experience in Other States

Despite the untenability of the New Jersey position, courts still flex
their muscles occasionally, making extravagant claims of exclusive power
over rules.'39 An extreme example is provided by State v. Clemente,140 in
which the Connecticut Supreme Court struck down a statute granting
criminal defendants discovery rights equivalent to those provided by sec-
tion 3500 of title 18 of the United States Code, under the theory that the
legislature had no authority to make rules for the court. In a thorough
historical analysis of Connecticut cases, Professor Kay has termed the
decision to be of a "radical character."'4' He concludes:

[T]he best safeguard to the proper balance between the courts and
other departments of government lies in the responsibility of
judges to exercise restraint and temperance in deciding questions
touching upon their own power. In the assertion of exclusive and
supreme power over matters of practice and procedure, the Con-
necticut Supreme Court has failed in that responsibility.'42

Apparently, the New Mexico Supreme Court has also taken this ex-
treme position recently. In Rule 501 of its Rules of Evidence the state
supreme court provides:

Except as otherwise required by constitution, and except as pro-
vided in these rules or in other rules adopted by the Supreme
Court, no person has a privilege. . . .'43

Not only has the court thus abolished prior statutory privileges,'44 but it

137. See, e.g., Note, The Rule-Making Powers of the Illinois Supreme Court. 1965 U.
111. L.F. 903. 906.

138. Nevertheless, New Jersey courts retain more freedom than most to deal with
substantive issues through rulemaking rather than adjudication. Busik v. Levine. 63 N.J. 351.
307 A. 2d 571 (1973). dismissed for want of a federal question. 414 U.S. 1106 (1973), noted in
27 Rutgers L. Rev. 345 (1974), a recent decision to control the substantive question of
prejudgment interest by rule, extends rulemaking power further than most authorities would
permit. Criticizing this expansionist approach. Professor Lynch has called it '"An Undue
Process." Lynch, The New Jersey Supreme Court and the Counsel Fees Rule: Procedure or
Substance and Remedx. 4 Seton Hall L. Rev. 19; 421. 496 (1972-73).

139. See. e.g.. Cohn v. Borchard Affiliations, 30 App. Div. 2d 74. 289 N.Y.S.2d 771 (1st
Dep't 1968), rev d, 25 N.Y.2d 237, 303 N.Y.S.2d 633 (1969) (provision governing dismissal for
failure to prosecute held invalid), noted in 43 N.Y.U. L. Rev. 776 (1968); State v. Clemente.
166 Conn. 501, 353 A.2d 723. 727 (1974), strongly criticized in Kay, The Rule-Making
Authority and Separation of Powers in Connecticut. 8 Conn. L. Rev. 1 (1975); State v.
Bridenhager. 257 lnd. 699, 707. 279 N.E.2d 794, 7% (1972); Newell v. State, 308 So. 2d
71, 77 (Miss. 1975); State v. Smith, 84 Wash. 2d 498. 527 P.2d 674. 677 (1974).

140. 166 Conn. 501. 353 A.2d 723 (1974).

141. Kay, supra note 139, at 22.

142. Id. at 43.

143. N.M. Stat. Ann. § 20-4-501 (Supp. 1975) (emphasis supplied). By contrast. Fed.
R. Evid. 501 acknowledges the legislature's power, as do the rules of other states which use
the Federal Rules of Evidence as a model. See Fla. R. Evid. 50.501; Me. R. Evid. 501; Nev.
R. Serv. § 49.015; Wis. R. Evid. 905-01.

144. N.M. Stat. Ann. § 20-l-12(c) (1953) (accountant); N.M. Stat. Ann. § 20-1-
12.1 (1953) (news sources); N.M. Stat. Ann. § 54-11-39 (1953) (medical research); N.M.

304

926 COLUMBIA LAW REVIEW (Vol. 76:905

has apparently taken the position that even statutory privileges subse-
quently enacted by the legislature would be invalid.145

While it may sound like heresy to the staunch supporters of unfettered
judicial rulemaking,14* legislative control of procedure works fairly well
where there are broad-based, active, well-financed agencies to prepare the
necessary studies and legislation. Judge Tate has expressed such a view
regarding the Louisiana system,147 where the legislature makes court rules:

The writer is not convinced that ... a transfer of rule-making
powers [to the courts] is necessarily desirable at this time. On the
whole, with the able ministrations of the Law Institute and Judi-
cial Council and the respect shown by the legislature for these
law-improvement agencies, statutory rule-making has worked well
in Louisiana.148

Even the most ardent supporters of rulemaking by the highest appellate
court in the jurisdiction have had to concede that the power, when granted,
often goes unused.149

Procedural reform in this country has never been the sole prerogative
of either legislature or courts. At' times the courts have laid the framework
for reform, as in the late eighteenth century.150 At other times, during
periods of judicial stagnation, as in the middle nineteenth century, legisla-
tive enactments such as the Field Code have been the primary vehicles for
change.151 During the greater part of this century the most striking reforms
have been achieved through court-made rules — most notably the various
federal rules. Nonetheless, statutory changes have not been uncommon;
they have ranged from business entry exception statutes152 to the multiple
procedural innovations of no-fault automobile liability statutes.153

Stat. Ann. § 67-30-17 (1953) (certified psychologist). See Ammerman v. Hubbard Broad-
casting. Inc., — N.M. — , 551 P. 2d 1354 (1976) (striking down newsperson's privilege).

145. This assumption is based upon conversations of the author with members of the
bench, bar and legislature of New Mexico. See also 2 J. Weinstein & M. Berger, supra
note 19. 1 501(06] (Supp. 1976).

146. See. e.g.. Ashman, Measuring the Judicial Rule-Making Power, 59 J. Am. Jud.
Soc'Y 215 (1975).

147. Tate. The Rule-Making Power of the Courts in Louisiana. 24 La. L. Rev. 555, 568
(1964).

148. If rulemaking power were granted the courts. Judge Tate suggested that the legisla-
ture retain general supervisory power. "In the future, a less progressive court system might
take too parochial a view of the regulation of judicial procedure, a matter which is after all the
concern of out entire people, not just of the bench and bar." Id.

149. See. e.g.. Ashman, Measuring the Judicial Rule-Making Power, 59 J. Am. Jud.
Soc'y 215, 219 (1975). For a full and excellent survey, see American Judicature Society, Uses
of the Judicial Rule- Making Power (1974) (mimeograph).

150. See Nelson, supra note 40, at 98.

151. See. e.g., C. Clark. Handbook of the Law of Code Pleading 17-19 (1928);
Pound. David Dudley Field: An Appraisal in David Dudley Field: Centenary Essays I
(1949). Cf. Kaplan & Greene, supra note 119, at 252 (discussing legislative reform in New
Jersey).

152. See. e.g.. N.Y. Civ. Prac. Law & R. § 4518. superseding N.Y. Civ. Prac. Act §
374a (McKinney 1963). See also Act of June 25. 1948. ch. 646, 62 Stat. 945, as amended, 28
U.S.C. 5 1732 (Supp. IV, 1974).

153. See. e.g.. III. Ann. Stat. ch. 73. §§ 1065. 150-. 163 (Smith-Hurd 1965). repealed.
1976 III. Laws Pub. Act 78-1297. 5 22; N.Y. Ins. Law §§ 670-77 (McKinney Supp. 1975); Pa
Stat. Ann. tit. 40. §§ 1009. 101-701 (Purdon Supp. 1976).

305

1976] COURT RULEMAKING 927

In sum, some sort of role-sharing between courts and legislatures is
both necessary and beneficial. Where courts have insisted on exclusive
control over rulemaking, the practical results have not been useful.

IV. Reforming National Rulemaking

A. Congressional Power to Delegate and Modify Terms of Delegation

In contrast to some of the states, the federal courts have recognized
that rulemaking is ultimately a legislative power residing in Congress,
although delegated in large measure to the courts. In upholding the validity
of the Process Acts,154 Chief Justice Marshall, writing for the Supreme
Court in Wayman v. Southard,155 recognized that an aspect of the Process
Act of 1792 concerned the power of courts to prescribe rules for proceed-
ings.156 Mr. Justice Marshall thus seemed to view the courts' rulemaking
power as descending by specific delegation from Congress rather than
deriving from an independent judicial authority to formulate procedural
rules.157

At one time it might plausibly have been argued that delegation to the
courts of such non-adjudicative functions as rulemaking was improper.
History has, as already noted, made that argument untenable.

Congress' position as possessor and delegator of the rulemaking power
is now assumed without question by the federal courts. The Supreme
Court in Sibbach v. Wilson & Co.,158 for example, simply asserted:

Congress has undoubted power to regulate the practice and pro-
cedure of federal courts, and may exercise that power by delegat-
ing to this or other federal courts authority to make rules not
inconsistent with the statutes or Constitution of the United States.

159

Since the mid-1930's the rulemaking function has been delegated al-
most entirely to the courts; Congress' power over the area has been reduced
to a monitoring status. As a result of the Supreme Court's long-standing
acknowledgement of the congressional prerogative over rulemaking and the
extensive delegation of this function to the courts, the only questions that
have arisen concerning the rulemaking power involve the extent and pro-
priety of the delegation to the courts. The Supreme Court addressed these
issues in the Sibbach case.

In Sibbach, the Court was faced with a question of the validity of
certain Federal Rules of Civil Procedure; Congress had been given an

154. See text accompanying notes 63-67 supra.

155. 23 U.S. (10 Wheat.) 1 (1825).

156. id. at 41-42.

157. 5^ Beers v. Haughton. 34 U.S. (9 Pet.) 329, 359-61 (1835); Bank of the United
Stales v. Halstead. 23 U.S. (10 Wheat.) 51, 53 (1825).

158. 312 U.S. 1 (1941).

159. Id. at 9-10.

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928 COLUMBIA LAW REVIEW [Vol. 76:905

opportunity to modify or veto these rules in accordance with the terms of
the Enabling Act of 1934, but had not done so. The Court held that even
though the Rules worked a major departure from past procedures, specific
congressional approval was not necessary:

The value of the reservation of the power to examine proposed
rules, laws and regulations before they become effective is well
understood by Congress. It is frequently, as here, employed to
make sure that the action under the delegation squares with the
Congressional purpose. Evidently the Congress felt the rule was
within the ambit of the statute as no effort was made to eliminate
it from the proposed body of rules, although this specific rule was
attacked and defended before the committees of the two Houses.
The Preliminary Draft of the rules called attention to the contrary
practice indicated by the Botsford case, as did the Report of the
Advisory Committee and the notes prepared by the Committee to
accompany the final version of the rules. That no adverse action
was taken by Congress indicates, at least, that no transgression of
legislative policy was found. We conclude that the rules under
attack are within the authority granted.160

Justice Frankfurter, joined by Justices Black, Douglas, and Murphy, dis-
sented, stating in part:

Plainly the Rules are not acts of Congress and can not be treated
as such. Having due regard to the mechanics of legislation and the
practical conditions surrounding the business of Congress when
the Rules were submitted, to draw any inference of tacit approval
from non-action by Congress is to appeal to unreality. And so
I conclude that to make the drastic change that [the rule in ques-
tion] sought to introduce would require explicit legislation.161

The two views in the Sibbach case, then, present the dilemma result-
ing from the uncertain division of the rulemaking power between courts
and legislature. Rulemaking of necessity falls into a blurred area where
precise separation of the powers of the independent branches is inappro-
priate. Inapplicability of strict separation of powers theory does not, how-
ever, require total abandonment of the concept in the context of rulemak-
ing. Experience with general powers of legislative delegation may supply
some helpful guidelines in striking a proper balance between the roles of
the courts and the legislature in rulemaking. The administrative agencies,
which assume legislative, executive and judicial roles, furnish one useful
analogy.

Under the traditional model of tripartite government, at least as formu-
lated by the framers of the Constitution, Congress is the source of policy-
making power. This is consonant with the fact that, of the three branches,
Congress bears the closest relationship to the people — the ultimate source
of power in any democracy. Under the doctrine of legislative delegation,

160. Id. at 15-16.

161. Id. at 18 (Frankfurter. J., dissenting).

307

1976] COURT RULEMAKING 929

Congress defers to the expertise of a delegate body, allowing it to act as a
legislature in a particular area, under the general policy formula dictated by
Congress. An outmoded theory of constitutional limits on legislative dele-
gation held that if Congress failed to outline a sufficiently specific policy in
the legislation creating the delegate body, the delegation failed and the acts
of the delegate body were void.162 Largely because the courts abused this
doctrine, using it to throttle economic and social legislation in the 1930's,'63
the theory of constitutional limits on delegation has been generally ignored
or given mere lip service for several decades.164 As one commentator has
recently noted, this refusal by the courts to insist that Congress' policy-
making role be preserved, coupled with Congress' own failure to assert its
role, has contributed to one of the major governmental developments of
recent times: a dramatic expansion of the powers of the executive branch
(exercised largely through a myriad of semi-independent agencies), and a
correspondingly drastic decline in the power of the legislative branch.165

It may be that the courts still have a role to play in restoring to some
degree the balance between executive and legislature, and that revival of
the doctrine of constitutional limits on legislative delegation would be
appropriate. Just as this doctrine may retain utility in the area of legislative
policy control over the executive, it may also be useful in those areas in
which the legislature supervises activities of the judicial branch. The posi-
tion of Chief Justice Marshall in Wayman v. Southard*6* remains valid
today: the rulemaking power of the courts is properly viewed as a legisla-
tive delegation.

It follows from this view that Congress should at least have the option
of establishing basic policy guidelines for court rules. Thus, the practice of
submitting proposed court rules for congressional approval or modification
seems altogether appropriate; such a process conforms to the basic tenets
of delegation theory.

It would be a mistake, however, for Congress to insist on reviewing
proposed rules in minute detail. Rulemaking is delegated so that Congress
may profit from the expertise of courts and specialists in areas of litigation
procedure with which they are far more conversant than Congress. Unless

162. See, e.g., Yakus v. United Slates. 321 U.S. 414.426(1944); Panama Refining Co. v.
Rvan.293 U.S. 388,415.421,430(1935); United States v. Chicago, Mil.. St. P. & Pac. R.R.,
282 U.S. 311, 324 (1931); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41-43 (1825).

163. Schechtcr Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining
Co v. Ryan, 293 U.S. 388 (1935). For a discussion of Schechier the "sick chicken" litigation,
see Bellush, The Failure of the NRA 168-70 (1975).

164. On the difficulties of defining constitutional limitations on the congressional delega-
tion power, see 1 K. Davis, Administrative Law Treatise § 2.0I-.06 (1958); Jaffe, An
Essay on Delegation of Legislative Power, 47 Colum. L. Rev. 359. 561 (1947).

• 165. See Gewirtz, The Courts, Congress and Executive Policy- Making, 39 L. & Con-
temp. Prob. — (1976) (in publication). See generally A. Schlesinger, Jr., The Imperial
Presidency (1973); Freedman, Crisis and Legitimacy in the Administrative Process, 27
Stan. L. Rev. 1041 (1975).

166. 23 U.S. (10 Wheat.) 1 (1825). See text accompanying note 155 supra.

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930 COLUMBIA LAW REVIEW [Vol. 76:905

Congress confines itself to the basic policy issues concerning the proposals
submitted to it, the ends sought to be achieved by the delegation will be
undercut.

The problem, of course, is to distinguish basic policy from mere detail.
A few guidelines can be suggested. First, congressional review of the
initial draft of a set of rules and of the new policies they reflect will
generally be more appropriate than review of the occasional subsequent
amendments, which usually only round out an existing policy framework.
Only where new amendments depart sharply from already approved poli-
cies does congressional scrutiny seem desirable.167

Second, Congress should scrutinize rules and amendments that may
have a substantive effect more carefully than those that will probably have
a technical or procedural effect.168

Third, while many rules have substantive effect, some such rules seem
more fitting for review than others. For example, court rules which would
impair the ability of particular individuals to obtain a full hearing or to
present evidence adequately would seem particularly appropriate for con-
gressional scrutiny.169 Public hearings at the drafting stage should help to
reveal such areas of concern.

Obviously, any list of priorities for congressional review must be
tentative. The effectiveness of the rulemaking mechanism under a delega-
tion system depends heavily on the wisdom of Congress in exercising a
considered restraint; absent this, the expertise of the various advisory
committees will be almost valueless. Nonetheless, the delegation theory
properly requires that congressional power to review be recognized. His-
torically, as already noted, such a balanced rulemaking process has proved
effective.

If Congress is to exercise restraint, so, too, must the courts. Where
substantial substantive policies are at stake or fundamental jurisdictional
issues are raised, the courts should refrain from treating the matter by
rules, but should, through the Judicial Conference or groups such as the
American Bar Association, seek appropriate legislation. In retrospect, for
example, it probably was a mistake for the Supreme Court and the Advi-
sory Committee on Evidence to attempt to force uniform privilege rules on
the federal courts.'70 These proposals caused a furor in Congress which

167 In this regard, congressional review of the new Federal Rules of Evidence, particu-
larly as they affect privileges. Fed. R. Evid. 501. and of amendments to the Federal Rules of
Criminal Procedure involving plea bargaining, Fed. R. Crim. P. 11(e). would be appropriate.

168 While it was not clear at the time of their adoption, amendments to the class action
rules of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 23, probably fall within the

former category. ..«■■■■ .u-

169. Proposals dealing with habeas corpus proceedings might fall into this category.

170 See 2 J Weinstein & M. Berger, supra note 19,1 501(01]. See also Developments

in the Law— Class Actions. 89 Harv. L. Rev. 1319, 1357-59, 1628-44 (1976) (criticism of use

of rulemaking power to modify the class action rule where the result may be major substantive

impacts). The Harvard Law Review discussion illustrates well the complex relationship among

309

1976] COURT RULEMAKING 931

rightly believed that they involved substantive policies. Similarly, reduc-
tion of jury size from twelve to six, discussed below in connection with
local rules, should not have been accomplished through rules. Yet, the
Committee on Rules of Practice and Procedure of the Judicial Conference
of the United States is now circulating a Proposed Rule 35.1 of the Federal
Rules of Criminal Procedure, providing defendants with the right to appeal
from sentences they consider too harsh.1 " While appellate review of sen-
tences seems to the author sound, there appears to be no basis in statutory
authority or in the history of the courts of appeals warranting such exten-
sion of jurisdiction through exercise of the rulemaking authority.172 Ap-
peals are covered by statute,173 and the matter of sentencing review ought
to be handled by statute as well, since it involves a substantial extension of
the jurisdiction of the courts of appeals. Congress would have to consider
the desirability of the rule and, if it were adopted, would need to add
substantial personnel to the courts so that the new jurisdiction could be
effectively exercised. The judgments in this area are not easy, particularly
since excessive restraint may result in neither Congress nor the courts
taking the necessary initiative.

B. Requirement of Public Deliberation

Inherent in the concept of delegation is the notion that it will be
exercised by the body receiving the power within the legislative tradition of
open and public deliberation. The 1973 Commission on Standards of Judi-
cial Administration of the American Bar Association specifically noted that
appropriate procedure should involve "opportunity on the part of members
of the public and the bar to suggest, review and make recommendations
concerning proposed rules,"174 and that "the participation of judges,
lawyers, legal scholars, and legislators in deliberations concerning the
rules, the provision of staff assistance for research and drafting, and circu-
lation of proposals for scrutiny and comment before their adoption" are
desirable.175 Most states utilize expert advisory groups— often judicial con-
various statutes and rules and the dangers involved when neither courts nor legislature take
the initiative to resolve tangled substantive-procedural problems.

171. Letter to the "Bench and Bar" from the Chairman and the Secretary of the Comm.
on Rules of Practice and Procedure of the Judicial Conference of the United States (Sept. 30.
1976).

172. Cf. Dorszynski v. United States. 418 U.S. 424. 431 (1974) ("once it is determined
that a sentence is within the limitations set forth in the statute under which it is imposed.
appellate review is at an end"). But cf. Comm. on Rules of Practice and Procedure of
the Judicial Conference of the United States, Advisory Comm. Note to Proposed
Rule 35.1, at 5 (Sept. 1976) (finding rulemaking authority in present power of the courts of
appeals to review sentences). If this rulemaking power exists, however, it is almost never
utilized.

173. See. e.g.. 18 U.S. C. § 3731 (1970); 28 U.S. C. § 1291 (1970). 28 U.S.C. §2106(1970).

174. ABA Comm. on Standards of Judicial Administration, Standards Relat-
ing to Court Organization 63 (Tent. Draft 1973).

175. Id. at 64. See also, e.g.. Sunderland, supra note 97, at 33.

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932 COLUMBIA LAW REVIEW [Vol. 76:905

ferences and councils176 — to help draft statewide rules.177 Such groups
often provide an opportunity for the bar and other interested parties to
suggest changes.178 In addition, the effective date of new rules is usually
set sufSciently far after promulgation to allow objections to be raised and
hearings to be held.179

Typical of the operation of such an expert body was the work of the
California Law Revision Commission in the adoption of the California
Rules of Evidence. The Commission's task was to prepare drafts for
consideration by the legislature. It drew assistance from law professors
who prepared the necessary research studies and it provided for publica-
tion and wide discussion of its preliminary proposals before submitting
them for legislative scrutiny.180 The rules ultimately adopted by the legisla-
ture were the end result of this process.181

The work of the new York State Committee to Advise and Consult
with the Judicial Conference on the CPLR provides another example of the
manner in which a body of expertise is utilized in rulemaking.182 The
Committee, which reports to the New York Judicial Conference,183 has
modest appropriations with which it commissions studies by law professors
on an ad hoc basis. The New York Civil Practice Law and Rules is subject
to constant revision.184 Under the New York practice, although statewide

176. J. Parness & C. Korbakcs, A Study of the Procedural Rule-Making Power in the
United States, app. Ill (Am. Judicature Soc'y, Aug. 1973) (mimeograph).

177. A. Vanderbilt, Minimum Standards of Judicial Administration 128-29
(1949).

178. Advisory Comm. on Practice & Procedure, Third Preliminary Report.
N.Y. Leg Doc. No. 17. at 833 n.41 (1959).

179. The probability of obtaining a change after promulgation, however, like the chance
of securing a rehearing. Is slight because of the reluctance of most courts to acknowledge their
errors.

180. California Law Revision Comm'n, Recommendation Proposing an Evi-
dence Code 3-8 (1965).

181. Id. at 3-4 (1965). See generally 6 California Law Revision Comm'n. Reports.
Recommendations and Studies 1962-1964; California Law Revision Comm'n, Rec-
ommendation Proposing an Evidence Code (1965). See also B. Witkin, California
Evidence §5 5-6 (2d ed. 1966).

An instructive contrast to the operation of the California Law Revision Commission is
seen in the functioning of the California Judicial Council, which has some limited power to
make procedural rules. See B. Witkin, 1 California Procedure 55 119-20. 52-53. 126-31
(2d ed. 1970). The Council apparently does not publish its rules in advance of adoption to
permit criticism — a failing which has been a source of irritation to the bar. Id.

182. Administrative Board of the Judicial Conference of the State of
New York. 19 Ann. Rep. A-27, Leg. Doc7 No. 90 (1974).

183. The New York Judicial Conference consists of the chief judge of the New York
State Court of Appeals as chairman, the four presiding justices— one from each of the four
departments, and judges representing the Surrogates Courts. County Courts, Court of Claims,
Family Court. Criminal Court of the City of New York and Civil Court of the City of New
York. The following ex-officio members by statute attend meetings of the Conference and
make recommendations: the Chairman and the ranking minority member of the Judiciary
Committees of the Senate and of the Assembly and the Chairman and ranking minority
member of the Codes Committees of the Senate and Assembly. The State Administrator, who
acts as Secretary, is assisted by the counsel, administration officer and extensive staff.
Administrative Board of the Judicial Conference of the State of New York,
16 Ann. Rep. 9-10, A-2 to A-ll, Leg. Doc. No. 90 (1971).

184. See, e.g.. Judicial Conference of the State of New York. Report to the 1976
Legislature in Relation to the Civil Practice Law and Rules and Proposed Amendments

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1976] COURT RULEMAKING 933

rules are promulgated by the Judicial Conference, subject to veto by the
legislature, much of the initiative for drafting changes in the statutes as well
as the rules comes from the Committee to Advise and Consult.185 The
system works fairly comfortably, although it would appear to be extremely
awkward.

Recognition that judicial rulemaking must be a public process is heal-
thy. When courts assume a legislative role, they also should exercise the
restraints that properly accompany that role. Public deliberations are a
basic safeguard to insure that the legislative process is fair and informed.
Professors Leo Levin and Anthony Amsterdam have summarized the
position well:

The whole aim of the balance of powers ... is the creation of a
scheme whereby the courts may maintain an effective, flexible
and thorough-going control over their own administration and
procedure, with the possibility of ultimate legislative review in
cases where important decisions of public policy are necessarily
involved. This is the aim of safe efficiency: immediately practical,
fundamentally democratic.186

C. Possible Supreme Court as Dele gee of the Rulemaking Power

If delegation is possible and desirable, to whom may the power of
rulemaking be delegated? The delegee should be chosen in a way that
makes institutional sense, that seems meet in an historical framework, and
that does no violence to our conceptions of separation of powers. From
what has already been said, it is obvious that the Supreme Court and the
individual lower courts could properly be delegated the responsibility of
rulemaking. So, too, could an assembly of judges such as the United States
Judicial Conference, or a committee appointed by judges and approved by
Congress. While Congress has great latitude in delegating power, however,
it cannot ignore the proper separation of roles of the executive, legislature,
and courts.187 It would, for example, seem improper today to delegate
rulemaking power to the President or even to an executive agency such as
the Department of Justice.

While it is clearly possible for Congress to delegate primary responsi-

Adopted Pursuant to Section 229 of the Judiciary Law (Feb. I, 1976) (mimeograph) (studies
and recommendations on, inter alia, notice of claim, attachment, replevin, arrest, and receiv-
ership; videotaping depositions; direct actions against liability insurance carriers).

185. Advice to the Judicial Conference is given by the Committee to Advise and Consult
with the Judicial Conference on the C.P.L.R., consisting of leading members of the bar and
law teaching profession. The recommendations of this group are based upon extensive
studies, usually prepared by law professors. Its recommendations are generally followed by
the Conference in amendments to the rules of the C.P.L.R. and. often, by the legislature in
proposals to amend sections of the C.P.L.R. and related statutes. See. e.g.. Admin-
istrative Board of the Judicial Conference of the State of New York, 16
Ann. Rep. A-28 to A-49, Leg. Doc. No. 90 (1971).

186. Levin & Amsterdam, supra note 119, at 42.

187. See Buckley v. Valeo. 424 U.S. I, 120-24 (1976).

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934 COLUMBIA LAW REVIEW [Vol. 76:905

bility for rulemaking to the Supreme Court, certain practical objections of
considerable persuasiveness have been raised concerning such delegation.
These will be considered in the following section.

D. Practical Objections to the Exercise of Rulemaking Power by the
Supreme Court

In 1944 Justice Frankfurter opposed the adoption of the Federal Rules
of Criminal Procedure on the ground that the Supreme Court would be
unable to evaluate them effectively in view of its distance from the realities
of day-to-day district court trial proceedings.188 He also believed that it
was undesirable for the Court to appear, through the issuance of rules, to
prejudge issues that might come before it in litigation.189 Justice Black also
opposed, but without explanation, the adoption of the Federal Rules of
Criminal Procedure. Justices Black and Douglas objected not only to par-
ticular sets of rules, but to the rulemaking process in general.190 In oppos-
ing the 1963 amendments to the Federal Rules of Civil Procedure and
recommending that rulemaking be carried out by the Judicial Conference,
they stated:

We believe that while some of the Rules of Civil Procedure are
simply housekeeping details, many determine matters so sub-
stantially affecting the rights of litigants in lawsuits that in practi-
cal effect they are the equivalent of new legislation which, in our

188. Rules of Criminal Procedure, Order. 323 U.S. 821, 822 (1944) (memorandum of
Frankfurter, J.).

In general, the changes made by the Supreme Court in the Rules forwarded to u have
been mmiscule. Perhaps the best known of the Court's infrequent modifications was the
elimination of the work product rule proposed in 1946 by the Advisory Committee on the Civil
Rules. See 4 Moore's Federal Practice 126.63(6], at 26-383 (2d ed. 1976). Since the issue
was posed by a case pending before h. "the Court declined to adopt the amendment,
preferring to handle the matter by decision." id. at 26-386. in Hickman v. Taylor. 329 U.S. 495
(1947). The Hickman doctrine was ultimately embodied in Rule 26(b) of the Federal Rules of
Civil Procedure b> the 1970 amendments. See 8 Wright & Miller, Federal Practice and
Procedure: Civil §§ 2022, 2023 (1970).

Another significant modification effected by the Court occurred in connection with its
action on the Federal Rules of Evidence. It was assumed by members of the Advisory
Committee on Evidence that the major reason the Court returned for further study the first
proposals for the new Rules of Evidence transmitted to it by the Judicial Conference was that
it was evenly split on the definition of a "representative of the client" in the area of
attorney-client privilege. This split was reflected in its inability either to adopt or to reject the
definition in Harper & Row. Publishers, Inc. v. Decker. 423 F.2d 487 (7th Cir. 19H0). affd by
equally divided court, 400 U.S. 348 (1971). which rejected the restrictive "control group' test.
See the history of the provision in 2 J. Weinstein &. M. Berger. supra note 19. * 503(01]. at
503-14 and ' 503(b)(O4], at 503-44. The next version forwarded to the Supreme Court and the
one adopted by it omitted this definition. Id. There were, of course, many other changes in the
new draft.

In the areas both of work product and privilege, contemporaneous litigation had appar-
ently sharpened the Court's awareness of the subtleties involved, making it less eager to
adopt categorical rules.

189. Rules of Criminal Procedure. Order. 323 U.S. 821. 822 (1944).

190. See, e.g., 368 U.S. 1012 (1961) (amendments to Fed. R. Civ. P.); 374 U.S. 865
(1963) (amendments to Fed. R. Civ. P.) (statement of Black and Douglas. JJ.); 383 U.S.
1031. 1032 (1966) (amendments to Fed. R. Civ. P.) (Black. J., dissenting); 383 U.S. 1089
(1966) (amendments to Fed. R. Crim. P.) (Douglas, J., dissenting in pan); 398 U.S. 979
(1970) (amendments to Fed. R. Civ. P.); 401 U.S. 1019 (1971) (amendments to Fed. R. Civ.
P., Fed. R. Crim. P.. Fed. R. App. P.).

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1976] COURT RULEMAKING 935

judgment, the Constitution requires to be initiated in and enacted
by the Congress and approved by the President. The Constitution,
as we read it, provides that all laws shall be enacted by the House,
the Senate, and the President, not by the mere failure of the
Congress to reject proposals of an outside agency. . . .

• • • •

Instead of recommending change to the present rules, we recom-
mend that the statute authorizing this Court to prescribe Rules
of Civil Procedure, if it is to remain a law, be amended to
place the responsibility upon the Judicial Conference rather than
upon this Court. . . . It is . . . [the Conference and its Committees]
who do the work, not we, and the rules have only our imprimatur.
. . . Transfer of the function to the Judicial Conference would
relieve us of the embarrassment of having to sit in judgment on the
constitutionality of rules which we have approved and which as
applied in given situations might have to be declared invalid.191

In response to Justices Frankfurter, Douglas, and Black, the Supreme
Court maintained that '*[t]he fact that this Court promulgated the rules as
formulated and recommended by the Advisory Committee does not fore-
close consideration of their validity, meaning or consistency."192 The argu-
ment that the Court remains completely free in fact to reconsider judicially
the rules it has adopted legislatively is not supported by the history of
judicial review of rules.

In Hanna v. Plume r ,193 for example, the Court was called upon to
determine whether Rule 4(d)(1) of the Federal Rules of Civil Procedure, as
applied in a diversity action, ran afoul of the Constitution, the Enabling
Act, or the holding of Erie v. Tompkins. ,94 The Court, in upholding the
validity of the rule against these challenges, relied in large part upon the
bootstrap argument that adoption of the rule by the Court, and acquies-
cence by Congress, had created a presumption of validity:

When a situation is covered by one of the Federal Rules, the
question facing the court is a far cry from the typical, relatively
unguided Erie choice: the court has been instructed to apply the
Federal Rule, and can refuse to do so only if the Advisory Com-
mittee, this Court, and Congress erred in their prima facie judg-
ment that the Rule in question transgresses neither the terms of
the Enabling Act nor constitutional restrictions.195

The central issue posed by the case, however — whether Rule 4(d)(1) is
substantive or procedural for purposes of Erie and of the Enabling Act —
had never been considered by the Court or Congress in the context of a
concrete fact situation during the course of the rulemaking process. Thus,
the Court's bootstrapping hardly measured up to the level of neutral analy-

191. 374 U.S. a: 865-66, 869-70 (amendments to Fed. R. Civ. P.) (statement of Black and
Douglas, JJ.).

192. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444 (1946).

193. 380 U.S. 460 (1965).

194. 304 U.S. 64 (1938).

195. 380 U.S. at 471.

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936 COLUMBIA LAW REVIEW [Vol. 76:905

sis that should be expected of the Supreme Court; the Court had, in effect,
legislatively predetermined the issue by adopting the rule.

Hart and Wechsler summarize this dilemma by commenting that, "[t]o
a significant extent, Hanna remits important Erie issues from the Court as
a decider of cases to the Court (and its advisers) as a promulgator of
rules."196 The Court, then, may have taken a position on Erie issues
which, as Justice Harlan points out in his concurrence in Hanna, involve
constitutional questions basic to the federal system,197 with neither the
traditional legislative nor adjudicative safeguards. It may legitimately be
asked whether the result in Hanna would have been the same if a district
court had adopted the rule and the Supreme Court's own power, prestige
and wisdom had not been at stake.19*

The secrecy which normally enshrouds the deliberations of the Su-
preme Court has given rise to another objection to its role in rulemaking.
The legitimacy of rules, like that of any legislation, stems in large part from
public access to the reasoning of the decision-makers; the Court's secrecy
poses a threat to this legitimacy. An example of the problem occurred
when the Court modified the informer privilege provided under the Federal
Rules of Evidence so as to favor the government's position.199 The failure
of the Court to offer any explanation for the change did nothing to allay the
suspicions of some that it had been influenced by the Attorney General's
views, which had not been fully accepted by the Advisory Committee.200
The impenetrability of the Court's decisionmaking process contrasts with
the openness of congressional procedures, under which hearings, reports
and floor debates generally permit the reasons for important changes to be
inferred, even if they are not explicit.

A third, and potentially quite serious, objection to rulemaking by the
Court concerns the dangers posed by congressional criticism of Court-
made rules. Such criticism creates an unnecessary conflict between the
Court and Congress and reduces the Court's prestige and reputation for
unbiased independence.

Finally, the flexibility of the Supreme Court in balancing a variety of
constitutional, statutory and other factors is inhibited by its having adopted
rules. The point is illustrated by Chief Judge Lumbard's forceful argument

1%. Hart & Wechsler, supra note 50, at 748.

197. 380 U.S. at 474 (Harlan, J., concurring).

198. See generally 2 J. Weinstein & M. Bercer, supra note 19, 1 501[01].
Hanna was strongly relied upon by the Advisory Committee in charge of drafting the

Federal Rules of Evidence, and many commentators concluded that the Court could do
whatever it wished in adopting these rules. Advisory Committee Note to Rule 501, in id.
Hanna' s force has not been reduced by congressional revision of the Federal Rules of
Evidence to eliminate rules of privilege. Congress did not overrule Hanna: it merely de-
termined, on policy grounds, that rules of privilege should not be adopted through rule-
making at this time.

199. 2 J. Weinstein & M. Bercer, supra note 19. 1 510(01].

200. Id., % 5I0[0I], at 510-17 to 510-18, * 510(06], 1 510(07].

315

1976] COURT RULEMAKING 937

that extrajudicial rulemaking rather than the Miranda decision (in effect a
set of Court-made rules) should have dealt with in-custody interrogation.201
He argued: rules rather than a constitutionally-based decision might have
been amended more easily; some experimentation with other techniques
was desirable, and rules would have permitted this; rulemaking would have
permitted full consideration of the views of other federal and state judges,
members of the bar, law enforcement officers and others; the American
Law Institute's then eighteen- month-old drafting project on a pre-
arraignment code could have provided a more sophisticated draft covering
more of "the many problems which follow in the wake of so complete a
break with the past;"202 and promulgation with an effective date in the
future could have eliminated the problem of frustrating prosecutions in
process.

All the advantages cited by Judge Lumbard would accrue if the rules
were adopted by another judicial agency, with the Supreme Court retaining
the right to depart from such rules where it believed the Constitution
required different state standards, or where congressional statutes or the
Court's power to control lower federal courts required modifications to
meet special problems not foreseen or adequately dealt with by the
rulemakers. The Court would not be inhibited in criticizing such rules since
it did not promulgate them. The Court's input into the complex of lawmak-
ing through adjudication could be reflected in subsequent amendments to
the rules. The Court would thus stand above and apart from lawmaking,
doing what it does best: considering a complex of constitutional provisions,
statutory amendments, rules, prior decisions and changing societal and
institutional needs in the context of particular problems presented in an
adversarial setting. When, in contrast, the Court adopts rules almost
blindly — as it must — the risk is considerable that it will needlessly sap two
of its great institutional strengths — flexibility and dispassionate decision-
making.

To summarize, at the present time the disadvantages to Supreme Court
rulemaking seem to outweigh the advantages. First, since the members of
the Court have less actual experience with details of lower court practice
than any other judges, their judgment in such matters is apt to be less
reliable; therefore they must, in the main, follow recommendations made to
them. Second, the Court's prior adoption of rules substantially reduces its
ability to evaluate independently whether such rules are consistent with
federal statutes and with the Constitution when these issues are raised on
appeal. As a result, important issues do not receive the constitutional
scrutiny they merit. Third, where rules adopted by the Court are later

201. Lumbard. Criminal Justice and the Rule- Making Power, Address to Conference of
Chief Justices in Honolulu (Aug. 3, 1967) (mimeograph).

202. Id. at 9.

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938 COLUMBIA LAW REVIEW [Vol. 76:905

rejected by Congress — as were the privilege provisions in the Proposed
Rules of Evidence203 — the Court has, in effect, rendered an advisory
opinion which will inevitably guide the lower courts, thus departing un-
necessarily from theoretical judicial doctrine. Finally, congressional criti-
cism of the Court's exercise of rulemaking power is costly to the Court as
an institution.204

The underlying point remains that the Supreme Court as a body has
never challenged Congress' ultimate authority over rulemaking, even
though the execution of this function has increasingly fallen to the courts.
Historical precedent also makes it clear that Congress has the power to
modify the way rulemaking is carried out. Since practical rather than
ideological considerations have determined rulemaking procedures, Con-
gress and the courts should not hesitate to consider further modifications in
the process. No tradition or vested interest prevents a fresh look at the
matter; the primary considerations that should dictate the nature of
changes are practical ones.

E. Proposals for Modifying the National Rulemaking Process

The current American solution to the placement of rulemaking power
resembles the British solution:205 authority is balanced between legislative
and judicial branches, with fundamental responsibility delegated to a judi-
cial offshoot, the Judicial Conference (and its attendant advisory commit-
tees). The Conference draft is theoretically subject to revisions by the
Supreme Court, and Congress reserves power to set aside or revamp any
provisions. This is a relatively recent division of responsibilities and has
worked fairly well, although it shows some signs of weakness.

What is plain from the discussion to this point is that there are serious
problems with present rulemaking procedure. Professor Lesnick has sum-
marized special areas of concern:

— The lack of sufficiently widespread input by all segments of
the legal profession and by the public, as a result of the procedures
by which the Judicial Conference and the advisory committees
reporting to it draft rules and recommend them to the Supreme
Court.

— The relative unrepresentativeness of the advisory commit-
tees and the excessive centralization of authority in a single indi-
vidual, the chief justice.

— The inappropriateness of utilization of the Supreme Court
as the official promulgator of the rules.

— The lack of a meaningful mode of congressional review that
does not undermine the rulemaking process itself.206

203. See text accompanying note 170 supra.

204. See also Goldberg. The Supreme Court. Congress, and Rules of Evidence, 5 Seton
Hall L. Rev. 667 (1974) (criticism by former Justice Goldberg).

205. See note 37 supra.

206. Lesnick. The Federal Rule-Making Process: A Time for Re-examination. 61
A. B.A.J. 379-80 (1975). For further discussion, see Hearings on Proposed Amendments to

317

1976] COURT RULEMAKING 939

Lesnick's first three recommendations for change207 based on his critique
are generally quite sound:

1. Judicial Conference procedures should be made more open and
should be published.

2. The composition of the advisory committees should be more
representative. . . .208

3. The assignment of a rule-promulgating role to the Supreme
Court is unwise and inappropriate and should be re-examined.

Professor Lesnick also makes a number of suggestions regarding Con-
gress' role in rulemaking. At present, rules of evidence do not take effect
until one hundred and eighty days after they have been reported by the
Chief Justice.209 Either house may reject or defer an amendment.210 Any
amendment "creating, abolishing, or modifying a privilege," must be ap-
proved by an act of Congress and thus must go to the President for signa-
ture.211 Other rules become effective ninety days after being reported to
Congress and require an act of Congress for deferral or modification,212
except that criminal rules on "Procedure after verdict" need not be re-
ported to Congress.213 There is no persuasive reason why all this national
rulemaking power should not be exercised in the same way and be subject
to the same control by Congress.

Some of Professor Lesnick's suggestions would help to achieve that
end. He would double the ninety-day period of delay to permit Congress a
more realistic amount of time to consider the rules.214 Congress needs
more time than it now has for review of rules; yet it is still desirable to
place some limit on the period so that necessary changes will not be put off
indefinitely while Congress addresses itself to more pressing matters.
Moreover, Professor Lesnick is on firm ground in objecting to the fact that
one house alone may block changes. This creates "a real danger ... of a
prolonged stalemate. . . ,"215

Professor Lesnick's last point seems more doubtful if it implies de-

Federal Rules of Criminal Procedure Before the Subcomm. on Criminal Justice of the House
Comm. on the Judiciary, 93d Cong.. 2d Sess. 197-209 (1974i (statement by H. Lesnick on
behalf of Washington Council of Lawyers) (hereinafter cited as Criminal Procedure Hearings].

207. Lesnick. supra note 206. at 580-83.

208. The further point that Professor Lesnick makes, that "the appropriateness of the
extreme centralization of authority in the chief justice should be examined." seems more
doubtful. The present Chief Justice, Warren Burger, has devoted an enormous amount of
energy to improving judicial administration. The author's observations of his work in a
number of committees and at various official meetings suggests that the Chief Justice's
leadership role has been useful and that this aspect of his work should not be limited. See
Weinstein. The Role of the Chief Judge in a Modern System of Justice, 28 Rec. of the Ass'n
of the Bar of the City of N.Y. 291 (1973).

209. 28 U.S.C. § 2076 (Supp. V 1975).
2)0. Id.

211. Id. See 5 J. Weinstein & M. Berger. supra note 19. at 1102-4 to 1102-13 for the
history of this provision.

212. 18 U.S.C. § 3771 (1970); 28 U.S.C. §§ 2072. 2075 (1970).

213. 18 U.S.C. § 3772 (1970).

214. Lesnick. supra note 206, at 583 (1975).

215. Id. at 584.

48-930 O— 85 11

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940 COLUMBIA LAW REVIEW [Vol. 76:905

tailed congressional revision of all proposed rules: "A workable mode of
genuine congressional review needs to be devised. "2I*

Generally, the author believes that review by Congress should avoid
attention to procedural details of court practice.217 So long as the rules
themselves are adopted by a judicial body with full legislative protections,
including public participation in hearings, full notice of all changes, and
adequate justification of rulemaking decisions,218 there is no need to repeat
hearings or to delay needed improvements in court practice. If a matter
becomes important enough for detailed congressional intervention, legisla-
tion is probably desirable, with formal participation by both houses and the
President.2"

The present Chief Justice of the United States apparently favors more
effective coordination between the advisory committees, the Supreme Court
and congressional committees in the drafting of proposed rules.220 The
author does not care for the suggestion that all three branches of govern-
ment participate in detailed drafting of the rules, through an independent
commission or otherwise.221 The legislature is sufficiently involved by

216. Id. at 583.

217. See also Hungate, supra note 16, at 1207 ("we should accord a healthy respect to
any amendment proposed by the Supreme Court."). For an attack and defense of con-
gressional action in the field of evidence, compare Copeland, Who's Making the Rules Around
Here Anvwav?, 62 A.B.A.J. 663 (1976) with Dennis, We're Making the Rules. 62 A. B.A.J.
1072 (1976).

218. See. e.g.. Evidence Hearings, supra note 8, at 168 (statement of C.R. Halpern and
G. T. Frampton, Jr.); Criminal Procedure Hearings, supra note 206, at 203 (statement of H.
Lesnick).

219. An example is the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74 (Supp. V,
1975), Pub. L. No. 93-619, adopted after Rule 50(b) of the Federal Rules of Criminal Proce-
dure had dealt with the same problem. The Act is discussed in connection with local rules at
notes 266-71 and accompanying text infra. Since no speedy trial rule will work unless the
courts are granted the personnel to make the rule a reality, congressional expression on the
policy of speedy trials was desirable. It is noteworthy, however, that while Congress was
quick to embrace the concept of speedy trials, it has been slow to supply the new judges
needed to effectuate the policy.

220. Judge Thomsen, in presenting to the House subcommittee the proposed amendments
to the new criminal rules, conveyed this message:

1 am authorized to say that the Chief Justice, as well as members of the standing
committee, believe it would be wise to have a closer relationship with members of
the appropriate congressional committees while proposed rules are being discussed
by the several advisory committees and by the standing committee of the Judicial
Conference. Perhaps a member of your committee and a member of the appropriate
Senate Committee, or someone from your respective staffs, might serve as members
of the standing committee and of each of the advisory committees, or might attend
meetings of those committees and comment on each proposal, as a representative of
the Department of Justice sometimes is asked to do. . . .

Criminal Procedure Hearings, supra note 206, at 5.
Mr. Hungate, the Chairman, responded in part:

We will certainly call to the attention of Chairman Rodino your suggestions concern-
ing the possibility of a closer liaison between the Congress and the Judicial Confer-
ence.

If I might interject at this point, I suppose that what happens with the rules of
evidence will influence the nature of the liaison. If nothing happens, and nothing
happens by the first of next August, we may have learned a lesson — Congress is
indeed not capable to deal with these problems. I should point out however, that until
recently the Congress has, more or less by default, let slide a responsibility that does
belong to it.

Id. at 6.

221. In support of the suggestion of an independent commission, see Criminal Procedure
Hearings, supra note 206, at 207; Lesnick, supra note 206, at 583.

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1976] COURT RULEMAKING 941

passing on the rules after they are proposed to it; if Congress were to
participate in the original drafting it might become too committed to a draft
to exercise its power of review impartially. The executive branch need not
be involved. It has sufficient input through memoranda and appearances by
its representatives, particularly the Department of Justice. If there is a bill
to delay or modify the rules, the President will have his usual veto power.
Ad hoc independent commissions are not useful in solving on-going prob-
lems of rule revision.

Another option would be to make the Judicial Conference of the
United States the active drafter and adopter of rules. This combined role
would probably not be desirable.222 The Conference is a rather unwieldy
body, heavily dominated by the Chief Justice of the United States who
appoints its committees. Its controlling members are the chief judges of
the courts of appeals, who achieve their status through seniority, and
representatives elected by the district judges of the circuits, who serve for
a short time and whose influence is transient.223

What this body is ideally suited for, however, is the function now
performed by the Supreme Court. It can do this job better than the Court,
since its members are more familiar with current practice problems than
are the Supreme Court Justices. Furthermore, shifting this function to the
Conference would obviate the present danger to the Court's independent
judgment when a rule is challenged before the Court.

Under this plan, the Standing Committee on Rules of Practice and
Procedure of the Judicial Conference of the United States would be given
legislative recognition as the body which will directly, and through its advi-
sory committees, make necesseary studies, announce proposed changes,
hold public hearings, draft rules, and justify changes. Its recommendations
would then be passed upon by the Judicial Conference (taking the place of
the Supreme Court). Congress should have a veto power if both houses act
within one hundred and eighty days.

As a practical matter, there is now strong psychological pressure on
individual advisory committee members to modify the rules as they think
the Chief Justice would wish. It is the Chief Justice, after all, who ap-
pointed them. Moreover, his good will is required because as chairman of
the Judicial Conference and as Chief Justice he will help shepherd the rules
through the Conference and the Court and will have the necessary power
and contacts to have an impact on Congress.

Much depends, of course, upon the interests and personality of the
Chief Justice. His positive interest in improving practice is healthy.

222. Clark, supra note 103. at 256-57.

223. Cf. Oliver, Reflections on the History of Circuit Judicial Councils and Circuit
Judicial Conferences, 64 F.R.D. 201, 212 (1975) f[I]f effective and innovative procedures are
cer to be designed for the improvement of the administration of justice on the tnal court
level, the suggestions for improvement will more likely come from trial judges and the trial
h^i than from any other source.").

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942 COLUMBIA LAW REVIEW [Vol. 76:905

Eliminating the Supreme Court's role would reduce his power somewhat,
but probably not appreciably. As chairman of the Judicial Conference he
would undoubtedly continue to have a great deal of influence, and properly
so.

Members of the Standing Committee should be appointed by the Judi-
cial Conference. Practically this will mean appointment by a nominating
committee dominated by the Chief Justice. While it would be possible to
subject the appointment of members of the Standing Committee or of its
chairman to confirmation by the Senate,224 there would be no advantage in
such confirmation; these offices should not be politicized. There seems to
be no reason to challenge the power of the Judicial Conference to appoint a
Standing or other committee to prepare drafts of rules. As already noted,
the Conference has exercised power under grant of Congress to study the
rules. Its existing Standing Committee has proposed the rules and amend-
ments to the Supreme Court using the Conference as a conduit. While
clause 2 of section 2 of Article II of the Constitution permits Congress to
"vest the Appointment of . . . inferior Officers ... in the Courts of
Law,"225 there is no reason why a committee representing all the courts,
such as the Judicial Conference, should not exercise the same power in this
respect as any particular "court." All the members of the Judicial Confer-
ence have been appointed by the President and confirmed by the Senate as
judges. Thus, authorizing the Conference to appoint rulemaking commit-
tees would merely give these judges additional duties consistent with those
already being exercised. These are not "executive or administrative duties
of a nonjudicial nature [which may] not be imposed on judges holding office
under [article] III of the Constitution."226

The term of each member of the Standing Committee might be five
years, with terms staggered. There might be a set ratio of, say, four judges,
two of them appellate and two of them trial judges, at least two law
professors, and at least four practitioners.

It is questionable whether there should be ex-officio members of the
Standing Committee. It might be useful toJiave a designee of the American
Bar Association who was actively involved in considering proposed
changes in the federal rules for that group. Another ex-officio member
might well be a representative of the Legal Services Corporation, which
has recently been organized by the federal government to coordinate legal ,
services to the poor. Ex-officio appointments, however, may lead to
mediocrity since organizations tend to designate for honorific reasons. On
balance, the Chief Justice and Judicial Conference can be trusted to pro-

224. For a discussion of the appointment power and congressional power to delegate the
power to courts of law, see Buckley v. Valeo, 424 U.S. 1. 124-27 (1976).

225. Emphasis added.

226. Buckley v. Valeo. 424 U.S. 1. 123 (1976).

321

1976] COURT RULEMAKING 943

vide representation from minority groups. Moreover, open hearings during
earlier stages of rulemaking will permit broad participation in the process.

Using the United States Judicial Conference to appoint Standing
Committee members will work well since the district court judges who are
Conference members know persons active in practice and are in a good
position to suggest candidates. Whether the Standing Committee or the
Conference appoints advisory committees, and who should appoint re-
porters and subreporters, are details that should be left to the decision of
the Judicial Conference.

The Judicial Conference will probably undertake little more revision of
the proposals presented to it than the Supreme Court has done. Neverthe-
less, allowing the Judicial Conference to take the place of the Court in
adopting rules will enable new rules to benefit from judicial imprimatur,
while averting the problem of subsequent court bias in litigation challenging
such rules. There is a definite value in the approval of the federal judges
sitting as a group. The rules are more likely to be accepted by the bench,
the bar. and the individual states in view of the prestige of such a group.

Of course, it is not possible to prevent Congress from being active in
rulemaking if it chooses to be. The level of its activity is largely a function
of the personalities of the chairperson and the members of the Judiciary
Committee and subcommittees. It would be helpful, however, if Congress
recognized that it should restrict itself primarily to consideration of the
larger policy issues, rather than involve itself in the details of rulemaking.

The rulemaking process should be "both fair and feasible"227; thus,
the Standing Committee should be required to hold public hearings. The
experience of federal agencies in rulemaking is useful in this regard, even if
not decisive.228 There is no reason why the courts should enjoy more
relaxed standards for their own rulemaking than they require of adminis-
trative agencies. Since important legislative considerations are involved, a
full oral hearing, not merely the right to submit written statements, should
be afforded.229 The congressional hearings held in connection with the
Federal Rules of Evidence furnish a satisfactory model.

Congressman Hungate, who had primary responsibility for guiding
both the Rules of Evidence and recent amendments to the Rules of Criminal
Procedure through Congress, has concluded from his experience that the
time may now be ripe for Congress to re-examine the national rulemaking
process.230 The author strongly concurs in that view.

227. Friendly. Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1315 (1975).

228. Id. at 1272-73, 1305-15.

229 But cf. United States v. Florida E. Coast Ry.. 410 U.S. 224 (19"3> (in absence of
express congressional requirement, the Administrative Procedure Act does not require full
oral hearing where the administrative agency is engaged in rulemaking, .ather than in ad-
judicatory functions).

230. Hungate, supra note 16, at 1207.

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944 COLUMBIA LAW REVIEW [Vol. 76:905

V. Local Court Rules, Guidelines and
Directives, and Individual Judge's Rules

A. Local Rules

Individual federal courts have had rulemaking power from their incep-
tion. The Act of March 2, 179323' provided:

That it shall be lawful for the several courts of the United States,
from time to time, as occasion may require, to make rules
and orders for their respective courts directing the returning of
writs and processes, the filing of declarations and other pleadings,
the taking of rules, the entering and making up judgments by
default, and other matters in the vacation and otherwise in a
manner not repugnant to the laws of the United States, to regulate
the practice of said courts respectively, as shall be fit and neces-
sary for the advancement of justice, and especially to that end to
prevent delays in proceedings. . . .232

The Conformity Act, however, by requiring state practice to be followed,
severely restricted the exercise of this power.235

Today, authority for promulgating local rules is most often found in
section 2071 of title 28 of the United States Code and Rule 83 of the
Federal Rules of Civil Procedure.234 Section 2071 provides:

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 by the Supreme
Court,235

231. Ch. 22. § 7. 1 Stat. 335.

232. Other earlv statutes recognized a discretionary rulemaking power of the federal
courts. See, e.g., Act of May 8, 1792, ch. 36, § 2, I Stat. 276; Judiciary Act of 1789, ch. 20, §
17, 1 Stat. 83. Such grants of power have been recognized as constitutional. See Cooke v.
Avery, 147 U.S. 375. 386-87 (1893); Wayman v. Southard, 23 U.S. (10 Wheat.) 1.41-42(1825).
Later cases asserted the existence of a wide discretion in federal courts to set their own rules
if necessary for 'the advancement of justice and the prevention of delay in proceedings."
Shepard v. Adams. 168 U.S. 618, 625 (1898). See also The Columbia. 100 F. 890, 894
(E.D.N.Y. 1900) (admiralty). For a discussion of the history of local rulemaking power, see
Note. Rule 83 and the Local Federal Rules, 67 Collm. L. Rev. 1251. 1253-54 (1967)
[hereinafter referred to as Rule 83 Note).

233. See, e.g.. Chisholm v. Gilmer. 299 U.S. 99(1936), Act of June I, 1872, ch. 255, § 5.
17 Stat. 197.

234. See In Re Sutter, No. 76-1194, at 185-93 (2d Cir.. Oct. 20. 1976) (holding valid
local rule, "[wjhether grounded upon the inherent power of the court or upon rulemaking
power conferred by 28 U.S.C. § 2071," under which attorney was fined $1500 'costs" for
recklessness in delaying trial). But cf. Gamble v. Pope &. Talbot. Inc.. 307 F.2d 729. 732 (3d
Cir.) (en banc), cert, denied, 371 U.S. 888 (1962) C[T]he local rule making power, while not
limited to the trivial, cannot extend to basic disciplinary innovations requiring a uniform
approach. Whether an attorney should be himself fined when, because of office oversight or
neglect, he is late in complying with am order of the court is a substantial independent question
which calls for mature consideration by the body charged with making Rule recommendations,
the Supreme Court's advisory committee."), criticized in Comment. Sanctions at Pretrial
Stages, 72 Yale L.J. 819. 830 (1963).

235. 28 U.S.C. § 2071 (1970). See also such specific grants as 28 U.S.C. §§ 137. 139-41.
751-54, 1654. 1863(b), 1914(c) (1970) and the Speedy Tnal Act. 18 U.S.C. § 3165 (Supp. V.
1975).

323

1976] COURT RULEMAKING 945

while Rule 83 of the Federal Rules of Civil Procedure states:

Each district court by action of a majority of the judges thereof
may from time to time make and amend rules governing its prac-
tice not inconsistent with these rules .... In all cases not
provided for by rule, the district courts may regulate their practice
in any manner not inconsistent with these rules.236

Inherent power has also been relied upon.237

Lower state courts in this country also generally have power to make
rules governing local practice. Federal and state local rulemaking are simi-
lar in that rulemaking procedure is not ordinarily prescribed by statute or
rule. In a few states the lower courts must certify their rules to the higher
courts before they become effective.238 Sometimes there is informal dis-
cussion with members of the bar and, less frequently, publication before
adoption. Generally, however, the lower courts adopt rules without any
systematic consultation or advance publication. Often, local rules are not
kept up to date nor codified and are apparently difficult to find.239

One of the few thoughtful examinations of local federal rules suggests
that they are a "maze of decentralized directives, encumbered by trivia and
often devoid of explanation."240 The Duke Law Journal has analyzed local
rules under the following headings, which give some idea of the range of
practices affected:241

1. Attorneys

2. Divisions within a District

3. Calendars and Motions

4. Pleadings

5. Notifications of a Claim of Unconstitutionality

6. Orders Grantable by the Clerk

7. Bonds and Undertakings

8. Depositions and Discovery

9. Pre-trial

10. Stipulations

11. Continuances

12. Dismissal for Want of Prosecution

13. Trial Conduct and Procedure

236. Fed. R. Civ. P. .83. See also the specific grants in Fed. R. Civ. P. 16, 40, 66, 78;
Fed. R. App. P. 47, Fed. R. Crjm. P. 57(a), 50(b) (requiring adoption of local speedy trial
rules).

237. See, e.g.. United States v. Furey, 514 F.2d 1098, 1103 (2d Cir. 1975) (speedy trial
rule in criminal cases); Shotkin v. Westinghouse Elec. &. Mfg. Co., 169 F.2d 825, 826 (10th
Cir. 1948) (power to dismiss for want of prosecution).

238. See, e.g., Kv. Rev. Stat. Ann. § 24.065 (Baldwin 1970); Mass. Ann. Laws c.
215, § 30 (Michie/Law. Co-op. 1974) (probate courts); Ohio Rev. Code Ann. § 2505.45
(Baldwin 1971); W. Va. R. Civ. P. 83 (1967).

239. In Doran v. United States, 475 F.2d 742, 743 (1st Cir. 1973) (per curiam), for
example, there is a discussion of the need for keeping the local rules up-to-date and for
arranging for their distribution.

240. Comment. The Local Rules of Civil Procedure in the Federal District Courts— A
Survey, 1966 Duke L.J. 101 1, 1012 [hereinafter cited as Local Rules Comment]. See Rule 83
Note, supra note 232.

241. Local Rules Comment, supra note 240, at 1013.

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946 COLUMBIA LAW REVIEW [Vol. 76:905

14. Impartial Medical Examinations and Testimony

15. Exhibits, Records, and Files

16. Juries: Empaneling and Instructions

17. Costs and Fees

18. Motions for New Trials

19. Appeals

20. Bankruptcy and Receivership

21. Habeas Corpus Procedure

Even this broad-ranging categorization does not complete the picture.242
Another comprehensive examination of local rules has concluded that

the majority of district courts have, in promulgating rules, ignored
the principles of simplicity . . . and uniformity which guided the
formulation of the Federal Rules. At times, district courts have
used their power under Rule 83 to negate specific requirements of
the Federal Rules; more often, simply to escape from the arduous
but essential task of case-by-case analysis.243

As some of the discussion below indicates, the subject matter of local
rulemaking continues to expand as local judges exercise their fertile imagi-
nations in dealing with perceived problems.

Summarized, the case law, statutes and rules provide that the dis-
trict courts may not formulate rules which are: "(1) Inconsistent with the
Federal Rules, (2) Inconsistent with Federal Statutes, (3) Unreasonable, (4)
Non-uniform and discriminatory."244 Nevertheless, control of local
rulemaking power has been relatively ineffective.

One method of limiting local rulemaking is to require reports. Rule 83
of the Federal Rules of Civil Procedure mandates that local rules au-
thorized thereunder "shall upon their promulgation be furnished to the
Supreme Court of the United States."245 Other local rules, promulgated
pursuant to Rule 47 of the Rules of Appellate Procedure, Rule 927 of the
Bankruptcy Rules and Rule 57 of the Rules of Criminal Procedure, are filed
with the Administrative Office of the United States Courts, which was
established after Rule 83 of the Federal Rules of Civil Procedure had been

242. There are also rules which, inter alia, limit the right to appear pro se in civil rights
cases, see M.D. Ala. R. I; provide for six-member juries in civil cases, see, e.g., M.D. Ala.
R. 1; forbid certain communications in class actions, see, e.g., S.D. Tex. R. 6; provide for
expert panels, see W.D Mo. R. 23: outlaw use of photography, radio and television in
environs of courthouse, M.D. Pa. R. 101.16; require special forms of pleading and procedure
in class actions, S.D.N.Y. R. 11 A; require use of certain forms in pro se habeas corpus
actions, W.D. Okla. R. 5: and mandate separate trials for liability and damages, see Wein-
stein. Routine Bifurcation of Jury Negligence Trial: An Example of the Questionable Use of
Rule Making, 14 Vand. L. Rev. 831 (1961). For a further collection of practices regulated by
local rules, see 12 Wright & Miller, supra note 188, § 3154.

243. Rule 83 Note, supra note 232, at 1251-52.

244. Local Rules Comment, supra note 240, at 1011 n.4 (citations and emphasis omitted).
For a collection of cases in which local district court rules were declared invalid and in
conflict with Rule 83. see 7 Moores Federal Practice % 83.03, at 8W (2d ed. 1976); see
also 43 Fordham L. Rev. 1086, 1096 nn.78 & 79 (1975).

245. Fed. R. Civ. P. 83.

325

1976] COURT RULEMAKING 94^

adopted. Only Rule 927 of the Bankruptcy Rules requires making the local
rules "available to members of the Public who may request them."246

This reporting system provides no control at all.247 Filing does not
imply approval by the Supreme Court or by the Administrative Office.248
Nor does central filing give effective notice to the public. While there is an
unofficial service collecting all civil, general 'and admiralty rules,249 it does
not include the local rules which affect criminal matters. There is no
simple way for an attorney to obtain all local criminal rules. Nevertheless,
an attack on a local rule on the ground that a copy was not sent to the
Supreme Court or to the Administrative Office would seem to have little
chance of success. As a result of these deficiencies, lack of familiarity with
local rules may become a trap for unwary lawyers from other districts.250

A second method of control is through appeals in individual cases.251
In most instances, however, the finality rule, limiting appeals from nondis-
positive orders, precludes interlocutory appeals challenging local rules.
Moreover, local bar associations as well as attorneys have been reluctant
to cross swords with local judges by formally challenging their rules.252 The
apathy of the bar also impedes challenge.253

On rare occasions the bar summons its courage to protest alleged
overstepping by judges in rulemaking. An example is Chicago Council of
Lawyers v. Bauer ,254 where the Seventh Circuit declared invalid, on the
ground of overbreadth, restrictions on the comments of lawyers about
pending litigation. Treating the rules essentially as a prior restraint statute,
and using normal statutory construction techniques, the court concluded
that amendment to provide somewhat narrower free press-fair trial rules
was advisable.255

246. See Bankruptcy Rules and Official Bankruptcy Forms, U.S.C.A. (West Pair.ph.
1975). The arrangements for public distribution are subject to the approval of the Direc-
tor of Administration of the United States District Courts.

247. Communications from the Clerk of the Supreme Court and the Administrative Office
to the author indicate that there is a passive filing without any attempt at supervision or
analysis.

248. 12 Wrjght & Miller, supra note 188, § 3151 n.12.

249. Fed. Rules Serv.

250. 12 Wright & Miller, supra note 188. § 3152. at 219.

251. See, e.g., Mathews v. Weber, 423 U.S. 261 (1976) (references to Magistrate); Wingo
v. Wedding. 418 U.S. 461 (1974) (delegation to master of responsibility of conducting eviden-
tiary hearing): Miner v. Atlass, 363 U.S. 641 (1960) (admiralty depositions); Rodgers v. United
States Steel Corp.. 508 F.2d 152 (3d Cir. 1975) (communication w/ith absent class members);
Chicago Council of Lawvers v. Bauer. 522 F.2d 242 (7th Cir. 1975) (no comment rule).

252. See Rule 83 Note, supra note 232, at 1263.

253. In Mathews v. Weber, 423 U.S. 261 (1976), counsel for one of the parties had so lost
interest in the matter that the Supreme Court had to appoint an amicus to argue the validity of
a local rule dealing with references to magistrates, id. at 265 n.2 — a curious example of the
failure of the adversary system in the area of rulemaking.

254. 522 F.2d 242 (7th Cir. 1975).

255 Id. at 249. In an interesting concurrence. Senior United States District Judge
Wyzanski, sitting b> designation, questioned the action of the court on the ground that it was,
in effect, issuing an advisory opinion.

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948 COLUMBIA LAW REVIEW [Vol. 76:905

Requiring approval of local rules by a superior court is a third method
of control. Equity Rule 79, 256 for example, required that district court rules
be approved by a majority of the circuit court judges for the circuit. This
limited form of control was abandoned with the adoption of Rule 83 of the
Federal Rules of Civil Procedure.257 Although the. Federal Rules Advisory
Committee had considered sending the equity control rule to the Supreme
Court as an alternative to Rule 83, in the end it submitted only Rule 83
which did not provide for supervision by the circuit judges.258 Professor
Moore suggests that the Committee wanted to reduce the possibility of
conflict between district and circuit judges.259

The technique of direct higher court supervision has been employed to
a limited extent, particularly in connection with attempts to obtain speedy
disposition of criminal cases.260 Rule 50(b) of the Federal Rules of Crimi-
nal Procedure, for example, gives both the judicial council of each
circuit — consisting of the full-time judges of the court of appeals — and the
Judicial Conference of the United States some input into and control over
the local rules. It reads in part:

(b) Plan for Achieving Prompt Disposition of Criminal Cases. To
minimize undue delay and to further the prompt disposition of
criminal cases, each district court shall . . . prepare a plan for the
prompt disposition of criminal cases .... The district plan shall
be submitted for approval to a reviewing panel consisting of the
members of the judicial council of the circuit and either the chief
judge of the district court whose plan is being reviewed or such
other active judge of that court as the chief judge of the district
court may designate. If approved the plan shall be forwarded to
the Administrative Office of the United States Courts, which
office shall report annually on the operation of such plans to the
Judicial Conference of the United States. The district court may
modify the plan at any time with the approval of the reviewing
panel. It shall modify the plan when directed to do so by the
reviewing panel or the Judicial Conference of the United States

261

Such a system, though, runs the risk of predetermining any later
challenge to a rule. Thus, in practice, the court of appeals will control
absolutely the language of a district court speedy trial plan and, for the

256. 226 U.S. 673 (1912).

257. See Rule 83 Sole, supra note 232. at 1265 n.77.

258. 7 Moore's Federal Practice 1 83.02. at 83-2 (2d ed. 1976).

259. Id. at 83-3.

260. Speedy Trial Act of 1974. 18 U.S.C. § 3165(c) (Supp. V. 1975) (plan "prepared by"
the district court to be submitted to a reviewing panel consisting of the council of the
circuit — that is. the full-time judges of the court of appeals — and the chief judge of the
district whose rules are being reviewed, or his designee).

261. Fed. R. Crim P. 50(b). The Supreme Court in Barker v. Wingo. 407 U.S. 514
(1972). refused to set precise guidelines because to do so "would require this Court to engage
in legislative or rulemaking activity, rather than in the adjudicative process to which we
should confine our efforts." Id. at 523. For the subsequent history of speedy trial rules in one
court, see United States v. SaJzmann, 417 F. Supp. 1 139 (E.D.N. Y.), affd — F.2d — (2d Cir.
1976).

327

1976] COURT RULEMAKING 949

sake of uniformity, the plan will have its genesis in the work of a committee
of judges of the Judicial Conference of the United States or of the circuit
council. Approval in advance by the circuit council means, in effect, that
all the sitting non-senior appellate judges have ruled by advisory opinion
that the local plan is desirable and valid. Accordingly, anyone arguing in an
individual case that part of the plan is invalid can probably assume some
bias in favor of the rule by the court of appeals.

The Second Circuit case of United States v. Furey262 is illustrative.
There, the Second Circuit panel had before it a rule of a district court
adopted, pursuant to Rule 50(b), as part of its Plan for Achieving Prompt
Disposition of Criminal Cases. The rule was based upon the "Second
Circuit Model Plan" followed by all the districts in the circuit. In an
attempt to have the rule invalidated, the government in Furey argued, inter
alia, that Rule 50(b) itself was invalid since it did not meet the require-
ments of its enabling legislation, section 3771 of title 18 of the United
States Code.263

The Second Circuit, in rejecting this challenge, stressed that Congress
could have rejected Rule 50(b) but had failed to do so:

Yet despite ample opportunity to invalidate Rule 50(b) as failing to
meet the requirements of § 3771, Congress chose to remain
eloquently silent, permitting the rule to become effective. In these
circumstances the words of the Supreme Court with regard to the
Federal Rules of Civil Procedure in Sibbach v. Wilson & Co. are
apposite:

The value of the reservation of the power to examine
proposed rules, laws and regulations before they become
effective is well understood by Congress. It is frequently
. . . employed to make sure that the action under the
delegation squares with the Congressional purpose. Evi-
dently the Congress felt the rule was within the ambit of
the statute as no effort was made to eliminate it from the
proposed body of rules. . . ,264

Of course neither Congress nor the Supreme Court had passed on the
particular local rule in question. In effect, then, the Court of Appeals
approved its own plan, without the safeguard of review by another body or
a test before uncommitted judges in an adversarial setting. It is not the
result in Furey but the process that is disquieting; courts, even more than
administrative agencies, must maintain a sharp distinction between legisla-
tive and adjudicative functions if they wish to preserve a convincing ap-
pearance of impartiality.265

262. 514 F.2d 1098 (2d Cir. 1975).

263. Section 3771. 18 U.S.C. S 3771 (Supp. V. 1975). Section 3771 grants to the Supreme
Court the power to make rules of pleading, practice, and procedure for criminal cases in the
United States district courts.

264. United States v. Furey, 514 F.2d 1098. 1105 (2d Cir. 1975) (citation omitted).

265. In the few cases where local court rules have been declared invalid by a higher

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950 COLUMBIA LAW REVIEW [Vol. 76:905

The problem was highlighted even more dramatically in the Second
Circuit when rules were adopted pursuant to the Speedy Trial Act of
1974 266 jne Eastern District of New York had adopted rules which, in
determining how long the prisoner had been detained before trial, excluded
delays caused by defense counsel or the prisoner. Following a plan incor-
porated in the Act," similar to that of Rule 50(b) set out above, this
provision was reported to the Second Circuit Council. The Council re-
jected the District's proposal and insisted on adoption of its "model" rule;
it acted privately without giving the judges, the public, or the United States
Attorney — who believed the "model" unsound and not required by the
Speedy Trial Act — an opportunity to be heard. The Chief Judge of the
Circuit felt that the interpretation of the Act by the inferior judges and the
United States Attorney (who had submitted an extensive brief on legisla-
tive history to the district court judges) was without merit.267 Should the
United States Attorney have challenged this speedy trial rule, he would
probably have felt that the matter had been foreclosed without a hearing.
The situation was particularly troubling because the extensive analysis of
the legislative history and language of the Act prepared by a group of
United States Attorneys indicated a substantial issue with respect to
excludable delays under the Speedy Trial Act.268 That the matter was not
free from doubt was suggested by the steady stream of announcements on
speedy trials issued by the Administrative Office of the United States
Courts.269

court, the higher court had not participated in making the rule. See, e.g.. Rodgers v. United
States Steel Corp.. 508 F.2d 152 (3d Cir. 1975). Whether the higher courts ha\e decided such
cases correctly is not relevant to this discussion. What is clear is that a court which has not
been involved in the drafting and approval of a rule is freer to act impartially in determining
the validity of that rule in an adversarial setting.

266. 18 U.S.C. §§ 3161-74 (Supp. V. 1975). See also Federal Judicial Center. An-
nual Report 14 (1975) (discussing the activities in this connection of the Center). Cf. United
States Courts for the Second Circuit. 1975 Annual Report 93 (mimeograph) (description of
planning activities introduced to expedite implementation of Act).

267. Letter of the Chief Judge of the Second Circuit. Irving Kaufman, to the author
(October 14. 1975); Resolutions of the Eastern District of New York (October 20. 1975). See
also letter of the Chief Judge of the Eastern District of New York, Jacob Mishler, to the Chief
Judge of the Second Circuit (July 31, 1975) (suggesting that the Eastern District Court change
to the model plan drafted by the Administrative Office), and the response (August 18, 1975);
memorandum of Circuit Executive to Second Circuit Judges (August 22, 1975); memorandum
of Chief Judge Mishler to the Eastern District Judges (September 17, 1975) (submitting
"Judicial Council Recommended Amendments to Conform Rule 50(b)"); Memorandum of
Judge Orin Judd to Chief Judge Mishler (October 6, 1975); Memorandum of the author to
Chief Judge Mishler (October 8. 1975); Memorandum of Judge Judd to the Eastern District
Judges (October 17, 1975); Letter of Judge Judd to Chief Judge of the Second Circuit (October
20. 1975); October 23 Memorandum of Judge Piatt attached to Order of Eastern District Court
(October 20. 1975); Memorandum of Judge Judd to the Judicial Council (October 28, 1975).
Numerous requests that the Judicial Council hear the Eastern District Judges opposing the
Second Circuit model were not acted upon. Minutes, Regular Meeting, Board of Judges of the
United States District Court, Eastern District of New York (October 20, 1975).

268. See. e.g.. Telex to all U.S. Attorneys from H.M. Ray. Chairman, Legislative and
Court Rules Subcommittee, Attorney General's Advisory Committee of United States Attor-
neys (Oct. 20. 1975); H.M. Ray. Speedy Trial Act of 1974: Applicability of Exclusions to
Interim Limits (mimeograph, n.d. 1975).

269. See letter from the "Speedy Trial Coordinator" of the Administrative Office of the
United States Courts to all federal judges (February 12, 1976) (listing numerous such an-

329

1976] COURT RULEMAKING 951

Subsequently, a special committee of judges of the Court of Appeals
for the Second Circuit met with a judge of the Eastern District and worked
out a compromise plan that met both courts' approval.270 The bar was
never privy to these discussions despite the fact that it will be seriously
affected by calendar problems created by the Speedy Trial Rules.271

As the foregoing material illustrates, each of the commonly used
methods of controlling local court rulemaking has its particular shortcom-
ings. But the most pervasive deficiency in this area of rulemaking, and the
one most seriously in need of correction, is the failure of local rulemaking
procedures to provide to those affected by the proposed rules an opportu-
nity to be heard. Some instances of this have already been noted, but
further examples will emphasize the significance of the problem.

When the Second Circuit recendy promulgated special training re-
quirements for admission to its bar,272 it failed to make advance public
announcement of the new rule, and provided no chance for interested
parties to argue in opposition to the change.273 By contrast, notice and
public hearings were afforded in connection with Second Circuit proposals
to restrict admission to the bar of district courts, and a serious debate
developed.274 Ultimate rejection of the proposed district court rule in the
Southern and Eastern Districts of New York275 dramatically illustrated the
value of open discussion. The Council of the Second Circuit had supported
the rule, and private communications from both the chief judge of the
circuit and the Chief Justice of the United States had urged the district
judges to consider the proposal favorably. In the absence of public hearings

nouncements). See also Administrative Office of the United States Courts, Report on ipeeay
Trial Act of 1974 (Sept. 30, 1976).

270. Minutes, Regular Meeting, Board of Judges of United States District Court, Eastern
District of New York (June 21, 1976).

271. The proper role of judicial conferences and councils in working with bench and bar
in administering the courts is beyond the scope of this Article. For a discussion bearing on this
subject, see Nat'l Conf. of Fed. Trjal Judges, Jud. Admin. Div., ABA. A Look at
Federal Circuit Judicial Conferences and Councils. 33, 48. 49. 53, 57, 60-63 (1976).

272. N.Y. Fed. Ct. R. 4-13.1 (2d Cir. 1975) (Standards for Practice by Attorneys).

273. The result is a rule which may well conflict with Rules 46(a) and 47 of the Federal
Rules of Appellate Procedure since the Appellate Rules are designed to permit a national
federal appellate bar ready access to all the courts of appeals. See generally Weinstein,
Proper and Improper Interactions Between Bench and Law School. 50 St. John's L. Rev.
441, 451 n.31 (1976). It is somewhat amusing that the late Professor Bickel, who argued the
Pentagon Papers cases in the Second Circuit and Supreme Court, would probably not have
qualified for admission in the Circuit without some special exemption, since he had never
argued a case in any court, save for a small claim in New Haven. See Polsky, In Praise of
Alexander Bickel, Commentary, January. 1976. at 52.

274. See, e.g., Ehrlich, A Critique of the Proposed New 'Admission Rule for District
Courts in the Second Circuit. 61 A. B.A.J. 1385 (1975); Weinstein, supra note 273, at 451
n.31; statement of Dean Michael I. Sovern of the Columbia University School of Law at
public hearings held November 20, 1974 at Association of the Bar of the City of Neu York
(unpublished), appearing in another form at 67 F.R.D 577 (1975). Committees of the Associa-
tion of the Bar of the City of New York, the County Lawyers' Association, and the Federal
Bar Council have opposed the proposals. See, e.g., 31 Rec. of the Ass'n of the Bar of
the City of N.Y. 95 (Jan./Feb. 1976).

275. N.Y.L.J.. Dec. 22. 1975, at 1, col. 3: N. Y.L.J. . Dec. 16, 1975. at 1, col. 2. Some
districts did, however, adopt the rule. See N.Y.L.J., Dec. 24, 1975. at 1, col. 3.

330

952 COLUMBIA LAW REVIEW . [Vol. 76:905

and debate there seems little doubt that the proposals would have been
quietly adopted.

Still another example of important rules adopted first and opened to
public debate later are those restricting citation of "non-published" deci-
sions of federal courts of appeals.276 The various courts of appeals have
adopted different rules on publication and citation, rules which have had a
serious impact on publishers of opinions as well as on advocates. In light of
their impact, a uniform approach to such rules is clearly desirable; yet
studies by a committee of the United States Judicial Conference were
undertaken only after the rules had been adopted.277 No judicial body had
the authority to overrule the individual courts of appeals or to insist that
they delay adoption of their rules. Even if the United States Judicial
Conference had had the power, it probably would not have exercised it,
since the normal deference extended to each chief judge sitting on the
Conference would permit him to protect the rules of his own court.

By contrast, the Judicial Conference of the United States, through a
special subcommittee working with the American Bar Association, has
drafted "Uniform Rules of Disciplinary Enforcement" designed to be
adopted by local federal courts.278 The subcommittee was of the view that
such rules could not be adopted nationally pursuant to any statutory or
inherent power of the Supreme Court.279 Accordingly, the Judicial Confer-
ence will probably promulgate them as guidelines and then urge each of the
federal courts to adopt them. The only objection the author has to this
procedure is that the proposals should be published generally before either
promulgation or adoption. Some local and state bar associations have had
extensive experience in disciplinary matters and lawyers should be heard.

Lack of public debate and publication of local rules before adoption is
typical.280 Mere publication is probably not enough to remedy this situa-

276. See Commission on Revision of the Federal Court Appellate System.
Opinion Writing and Publication 2 (1974); Standards for Publication of Judicial
Opinions 5 (FJC Research Series No. 73-2. August 1973).

277. See United States v. Joly. 493 F.2d 672. 675-76 (2d Cir. 1974); Kanner. The Unpub-
lished Appellate Opinion: Friend or Foe?, 48 Cal. St. B.J. 387 (1973); Board of Federal
Judicial Center, Recommendations and Report to April 1972 Meeting of the Judicial Confer-
ence of the United States (mimeograph); Subcomm. on Federal Jurisdiction, Report to the
Chairman and to the Members of the Comm. on Court Administration 9-10 (1972) (mimeo-
graph) (containing responses from various courts of appeals); Administrative Office of United
States Courts, Report to the Subcomm. of Federal Jurisdiction on the Operation of Circuit
Opinion Publication Plans (Jan. 7, 1975) (mimeograph).

278. See letter from William E. Foley to all federal judges, dated October 1, 1976, with
proposed "Uniform Rules of Disciplinary Enforcement."

279. Id.

280. As the Director of the Federal Judicial Center recently indicated,

local district and circuit rules are not customarily published in advance and courts do
not conduct hearings thereon. [With one exception] 1 know of no advance distribu-
tion of proposed rule changes although there are bench-bar committees in some areas
and perhaps some minimal contact through that source.
Letter to the author (Jan. 5. 1976). An extreme example of this practice occurred in 1968 when
•the Court of Appeals for the Fifth Circuit, without prior notice to or consultation with any
segment of the bar, adopted the first significant •screening' procedures for the curtailment and

331

1976] COURT RULEMAKING 953

tion. Members of the bar will generally fail to respond unless committees of
the bar associations have studied the matter or unless the court itself
appoints a committee or reaches out to invite public comment from those
persons who should be interested. The meetings of the circuit conferences
have sometimes been used to good effect in this connection. The experi-
ence in the Eastern District of New York, where most rules are published
before adoption, is that almost no communications are received unless
pointed questions are put to individuals and associations. In the Northern
District of Illinois the experience has been similar.281 Nevertheless, any
effort to involve the bar and public is worthwhile: not only will it result in
valuable suggestions and the avoidance of inadvertent errors, but also in
greater acceptance of changes on the part of practicing lawyers and

others.282

Adoption without an opportunity for those affected to be heard is
undesirable. No rule adopted by a regulatory agency after such procedure
would be permitted to stand.283 The lack of deliberation and public debate
was apparently one reason the Supreme Court in Miner v. Atlass2** struck
down a local rule permitting depositions in admiralty cases:

The problem ... is one which peculiarly calls for exacting obser-
vance of the statutory procedures surrounding the rulemaking
powers of the Court . . . designed to insure that basic procedural
innovations shall be introduced only after mature consideration of
informed opinion from all relevant quarters with all the oppor-
tunities for comprehensive and integrated treatment which such
consideration affords.285

Such a result, however, is rare. The Supreme Court permitted a much

elimination of oral argument" in the Court of Appeals. Segal. Trial Balloon — Oral Argument
in the U.S. Court of Appeals: Can it be Salvaged?, 2 Litigation 3 (Fall 1975). This was the
same year in which Rule 34 of the Federal Rules of Appellate Procedure, dealing with oral
argument, became effective. Id.

A memorandum of one of the project directors of the Judicial Center reflected the view of
many judges when it noted:

[MJany proposed rules may be assumed to be likely sources of bar opposition.
despite their ment. Apart from natural conservatism among the bar. many rules do
impose additional burdens, which lawyers naturally oppose. Perhaps pre-publication
or hearings would allow the courts to minimize the burdens. Perhaps, also, those
procedures might harden bar opposition to rules that are desirable and necessary.
Why take the chance?
Memorandum of Steven Flanders to Judge Walter E. Hoffjnan (December 22. 1975).

281. Memorandum of Steven Flanders to Judge Walter E. Hoffman (January 9. 1975);
letter of H. Stuart Cunningham to author (January 22, 1976).

282. See. e.g.. letter of Judge Eugene A. Wright. United States Court of Appeals for the
Ninth Circuit, to the author (January 19. 1976):

From my experience in this court and in the state court system, I can tell you
that it is always wise to work with a bar committee. Lawyers will accept rules, even
those they do not like, if they have had an opportunity to be heard before the court
finally adopts them. The Washington Supreme Court learned this years ago and it
rtow gives at least six months' notice to the state bar before adopting any rule
changes.

283. See generally 1 K. Davis, Administrative Law Treatise §§ 6. 04-. 06 (1958);
Friendly, Some Kind of Hearing. 123 U. Pa. L. Rev. 1267 (1975).

284. 363 U.S. 641 (1960).

285. Id. at 650.

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954 COLUMBIA LAW REVIEW [Vol. 76:905

more controversial and radical change by local rulemaking when it ap-
proved six person juries in Colgrove v. Battin.2%b The Advisory Committee
on Civil Rules, the Standing Committee on Rules of Practice and Proce-
dure and the Judicial Conference had all agreed that a reduction in the size
of civil juries should be accomplished by statute rather than local rule or
promulgation as an amendment to the Federal Rules of Civil Procedure.287
Despite the clearly sound conclusion that all the protections afforded by
congressional hearings were desirable before the number of jurors was
reduced, local federal rules reducing juries were promulgated widely in the
wake of Colgrove. 288 Generally, these local rules were adopted without
open debate or full study.

It is doubtful that Congress would have readily approved such changes
by statute or that it would not have questioned a like change in the Federal
Rules of Civil Procedure. Before the Supreme Court decided Colgrove,
Professor Moore pointed out that "[i]t would border on the quaint to
suppose that the number of alternates is a matter requiring uniformity of
practice under the Rules (Rule 47(b)) while the number of jurors is left to
local rules."289 The Supreme Court, however, did not agree. Professor
Zeisel has expressed grave doubt about the statistical validity of the data
judicially noticed by the Supreme Court in Colgrove.290 The matter was
certainly worthy of a more effective debate than it was accorded when it
was attacked as zfait accompli in litigation that culminated in the Supreme
Court in Colgrove. Earlier consideration of the matter by a group having
national responsibilities and an effective forum for debate would have been
useful.

B. Improvement in Local Rulemaking

As noted above, local rules are typically adopted without the aid of an
advisory committee, without publication in advance, and without an oppor-
tunity for interested parties to be heard before the judges act in private. :"
Professors Wright and Miller accurately observe that

the process by which local rules are made is simply not suited for
the complex and controversial subjects to which many local rules
are addressed.

286. 413 U.S. 149 (1973).

287. 1971 United States Judicial Conference Report 5-6. 60.

288 See. e.g.. N D. Ala. R. 4; D Conn. R. 12a: D. Del. R. 14a: D.D.C. R. 1-I7(a).
N.D. Fla. R. 18. Eighty-two out of 94 federal district courts have now adopted some forms of
the six member jury in civil cases. The Third Branch. Sept.. 1976. at 7. col. 2.

289. 7 Moore's Federal Practice % 83.03n.4. at 83-86 2d ed. 1976.

290. Zeisel & Diamond, '.Convincing Empirical Evidence " on the Six Member Jury . 41
U. Chi. L. Rev. 281 (1974); Zeisel. . . . And Then There Were None: The Diminution of the
Federal Jurv. 38 I'. Chi L. Rev. 710(1971). See also Lempert. Uncovering Sondiscermblc
Differences: Empirical Research and the Jun-Size Cases. 73 Mich. L. Rev 694 (1975).
694 (1975). . J „

291. Cf. Doran v. United States. 475 F.2d 742 (1st Cir. 1973) (United States Attorney not
aware of rule; effective means of promulgation and recompilation should be developed).

333

1976] COURT RULEMAKING 955

... In a few districts a committee of local practitioners is
consulted but this is the exception rather than the rule. In most
districts the judges consult with each other and make local rules
on their own. It is decidedly the exception for the bar and the law
schools to be given an opportunity to comment on proposed drafts
of local rules.

... It is wholly unsatisfactory as a. means of dealing with
such difficult and controversial topics as separate trial of liability
from damages or impartial medical examinations. Yet these, and
many other equally sensitive matters, have been thought the prop-
er subject for local rules in many districts.292

In one instance of this general practice of in camera rules adoption,
the Supreme Court of New Jersey took the flat position that maximum
contingent fees could be established by rule without a prior evidentiary
hearing.293 It relied upon judicial notice and on its "accumulated experi-
ence over the years."294 The court did, however, hold "an open meeting. . .
with representatives of the Bar to elicit views as to the adoption of the
rule."295 Such a meeting is a most unusual step in local rules promulga-
tion.296 Yet, there is no practical reason why the public cannot be involved.

Some courts, such as the Eastern District of New York, have adopted
the practice of publishing most proposed rules in advance, and sending
copies to the various bar associations with a request for comments. Gener-
ally those comments have been sparse. The author's belief is that a hearing
should be held at which testimony on thr proposals is taken. Most judges,
however, disagree: because of the paucity of comment received in the past,
they have not felt such a hearing necessary. The author has concluded that
were a hearing held and specific persons invited to testify, a useful debate
could be generated on some of the proposals. Such hearings would also
provide the bar with a forum for ventilating other grievances and making
suggestions. When the Eastern District of New York was considering
adopting its individual calendar assignment rules, for example, a public
hearing was held. It was well attended and resulted in a number of useful
suggestions as well as in a better understanding by both the bench and bar
of the problems that the new rules might create.

Standing committees such as those used in connection with national
rules might also help focus attention on local practice. If public participa-

292. 12 Wright & Miller, supra note 188, at 220.

293. American Trial Lawyers Ass'n v. New Jersey Supreme Court, 66 N.J. 258, 330 A. 2d
350 (1974). See also American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S.
467 (1973) (per curiam) (remand to three-judge federal court to await conclusion of stale
court proceedings). Cf. Gair v. Peck, 6 N.Y.2d 97, 160 N.E.2d 43 188 N.Y.S.2d 491 (1959).
appeal dismissed and cert, denied, 361 U.S. 374 (I960) (courts have power to define excessive
contingent fees for purposes of disciplinary action).

294. American Trial Lawyers Ass'n v. New Jersey Supreme Court, 66 N.J. 258, 266, 330
A. 2d 350. 354 (1974).

295. Id. at 266 n.8. 330 A. 2d at 354 n.8.

2%. The New York court limitations on contingent fees were adopted after public
hearings. See Gair v. Peck, 6 N.Y.2d 97, 160 N.E.2d 43 (1959), 188 N.Y.S.2d 491, appeal dis-
missed and cert, denied. 361 U.S. 374 (1960), noted in 60 Colum. L. Rev. 242 (1960).

334

956 COLUMBIA LAW REVIEW [Vol. 76:905

tion is considered unwieldy, a court should at least avail itself of an
advisory committee. Cognizant of the objection to ex parte promulgation,
the federal judges in the Northern and Southern Districts of Iowa worked
closely with the Special Committee on Federal Practice and Procedure of
the Iowa State Bar Association in drafting rules for their courts.297

Professors Wright and Miller suggest that approval of local rules be
required, "perhaps by the Standing Committee on Rules of Practice and
Procedure or its parent body, the Judicial Conference of the United States,
before they may go into effect."298 Professors Wright and Miller's alterna-
tive proposal, that the power be circumscribed by amending Federal Rule
of Civil Procedure 83 and its criminal and appellate counterparts to specify
"those few limited areas in which local rules may be made,"299 seems too
restrictive and assumes a skill in drafting and prescience not normally
available.

One advantage of having all local rules reported to a national rulemak-
ing authority is that attention to developments might suggest areas where
national standards should be considered.300 Lacunae in the national rules
might be revealed and discrepancies in local practice identified, warranting
elimination of conflicts for somewhat the same reason that the Supreme
Court attempts to eliminate conflicts between the circuits. In Miner v.
Atlass,yox for example, the Supreme Court struck down local rules dealing
with discovery in admiralty on the ground, among others, that uniformity
was required, and then adopted a discovery-deposition rule for admir-
alty.302 When new national rules are adopted, such as, for example, the
amendment making uniform the order of the parties on summation,303 a
national rulemaking authority could order conforming changes in local
rules. Differences in local rules governing jury size may sometimes lead to
inadvertent waivers, suggesting the need for uniform national treatment.

If the Judicial Conference of the United States were given some
control over local rules, the chief judge of each circuit as well as the Chief

297. See Blair, The New Local Rules for Federal Practice in Iowa. 23 Drake L. Rev.
517, 520 (1974).

298. 12 Wright & Miller, supra note 188. at 223.

299. Id. , , . ,

300. See Local Rules Comment, supra note 240. at 101 1. A curious example of •'national
local rules" is the proposed "Model Local Rule and Complaint in the Social Security and
Black Lung Litigation." It was forwarded to all United States District Judges by the Director
of the Administrative Office of the United States Courts by letter dated March 1, 1976, "at the
request of the Committee on Court Administration of the Judicial Conference with a recom-
mendation for favorable action." Apparently it was first sent to the Administrative Office by
letter dated January 7, 1976, from the Office of General Counsel of the Department of Health,
Education and Welfare with abetter indicating that it had been drafted by the General
Counsel's office and the Department of Justice. There is no indication of publication in
advance, as probably would have been required had an administrative regulation been
adopted. Nor is it apparent why. if a uniform national rule were required, the ordinary
procedures for amending the Federal Rules of Civil Procedure were not followed.

301. 363 U.S. 641. 649-50 (I960).

302. Adm. R. 30A, 368 U.S. 1023 (1961).

303. See Fed. R. Crim. P. 29.1.

335

1976] COURT RULEMAKING 957

Justice of the United States and a number of district judges would, by
passing upon the rule, reduce somewhat their apparent impartiality should
the rule come before one of them in litigation. However, the impact on any
particular decision would be minimized by use of panels at the court of
appeals level and the entire bench at the Supreme Court level. Fur-
thermore, a request in any court for disqualification would undoubtedly be
honored. The risk of a claim of bias by a litigant would thus be reduced to
the vanishing point. Where, in contrast, the entire circuit council passes
on the validity of a rule in advance, the claim of partiality may be substan-
tial, as already demonstrated, and there may be no practicable way of
dealing with it.

Effective reporting and some degree of control at the national level
might result in reduction of the plethora of local rules; this would accord
with the original intent of the drafters of the Federal Rules of Civil and of
Criminal Procedure.304 The present local rules situation has been charac-
terized by Professor Rosenberg as "a kind of procedural Touer of
Babel."305

C. Quasi-Rule Directives

The United States Judicial Conference has issued a wide variety of
recommendations to guide lower courts, many of them of a rule-like
character. They range from disapproval of the use of a conspiracy indict-
ment to convert joint misdemeanors into a felony, to suggestions as to
which cases should receive preferences, which ones are suitable for mas-
ters, and which ones justify granting bail before or after conviction.306

Occasionally the directives are followed with such faithfulness that
they become, in effect, rules — rules, however, lacking even customary
minimal procedural safeguards. Second Circuit guidelines, for example,
reducing below the statutory level the compensation available to attorneys
appointed to represent indigent criminal defendants, are rigidly enforced
despite the fact that they were adopted without public debate or publication
and at a time when the cost of living was 40% below what it is now.307
Such policy-making directives may have distinct substantive overtones.

In some state courts such as those of New York, private directives
from the Presiding Justice of the Appellate Division or an administrative
judge control the discretion of trial judges.308 To the extent that these

304. See Rule 83 Note, supra note 232. at 1255-59.

305. Hearings Before the Subcomm. on Improvements in Judicial Machinen of the
House Comm. on the Judiciary, 90th Cong., 1st Sess. (1967) (testimony of Professor M.
Rosenberg on April 21, 1967). quoted in Rule 83 Sote, supra note 232. at 1259.

306 P. Fish. The Politics of Federal Judicial Administration 71-74 (1973).

307. See letter from Chief Judge of Second Circuit to Judge Bonsai (November 1?. 1975).
Cf. [1975] Report of the Proceedings of the Judicial Conference of the United
States 75 (Sept. 25-26. 1975) (guideline on payments under Criminal Justice Act for defen-
dants who have some resources).

308. See. e.g., Directive, limited stays in criminal appeals (February 5, 1975): Directive.

336

958 COLUMBIA LAW REVIEW [Vol. 76:905

directives and quasi-rules are not published, they create serious problems
for the practicing lawyer.109

At the least, directives should be published, so that they can be
systematically gathered, analyzed, and criticized. Ideally, the same proce-
dures of publication and hearing before adoption" should be followed as in
the case of other rules.

D. Guidelines

Courts or committees may issue guidelines that differ from rules only
in the informality of their adoption. The range of topics touched upon can
be as broad as that covered by rules and the influence on court activities
can be as pervasive. For example, the Second Circuit Judicial Council has
recently recommended guidelines on sentencing for adoption by the dis-
trict courts.310 While they would have no binding effect, the impact on
sentencing would be quite substantial — similar to that of a rule or statute
allowing some discretion.

The Eastern District of New York has adopted an extensive list of
"fines" which may be levied for various infractions, ranging from $100 per
bird for taking migratory nongame birds to $25 for advertising on certain
public lands.311 They are "guidelines" only, but they will be followed
despite the fact that no notice or public hearing was provided. Even if such
a guideline is ignored, an appellate court will tend to be heavily influenced
by it, particularly if the court participated in the formulation.

The trend is for more supervision, not less. Numerous agencies and
officials have come forward in the last few decades to assist in improving
court administration. The Administrative Office of the United States
Courts, for example, was established to aid in the achievement of one of
the major purposes of the Act of August 7, 1939:312

to furnish to the federal courts the administrative machinery for
self-improvement, through which these courts [would] be able to

use of split trials "whenever possible" (January 31, 1974); Directive, avoid referrals of
custody disputes to Family Court (April 4, 1974).

309. In Mathews y. Weber. 423 U.S. 261 (1967). for example, the Court upheld General
Order No. 104-D of the Central District of California which provides for initial reference to a
magistrate in certain administrative review matters. This order might well affect an attorney's
trial tactics. Yet, an examination of the current Federal Rules Service purporting to contain all
current local rules does not reveal this order.

310. See N.Y. Times. March 18. 1976. at 37. col. 3. See also Joint Comm. of the Ass'n..
The New York County Lawyers' Ass'n and the Fed. Bar Council. Federal Sentencing
Practices, 30 Rec. of the Ass'n of the Bar of the City Of N.Y. 652(1975). The proposed
rules are set out in N.Y.L.J., March 18. 1976. at I, col. 3. By resolution of the Board of
Judges of the Eastern District of New York, adopted February 9, 1976. those portions dealing
with treatment of the presentence report were adopted (without public notice) and embodied
in notices of sentencing to be mailed by the probation department. Subsequently, more
extensive "sentencing standards" based upon Second Circuit proposals, but with some
modifications, were adopted to guide lawyers and court personnel. N. Y.L.J. , Oct. 15. 1976, at
1, col. 3. No public hearings were held before adoption.

311. E.D.N.Y. R. 252.

312. Chandler v. Judicial Councils. 398 U.S. 74. 97 (1970).

337

1976] COURT RULEMAKING 959

scrutinize their own work and develop efficiency and promptness
in the administration of justice.313

The Federal Judicial Center was organized to conduct studies and make
recommendations with respect to the improvement of the administra-
tion of justice.314 These groups and others, including the circuit judicial
councils and conferences, tend to share their expertise on the judicial
system by issuing guidelines, drafts of rules and suggestions concerning
procedure in the district and circuit courts.

This development is one that most judges interested in improving the
work of the courts welcome, since it generally results in more effective
justice. The impact of these guidelines on the rights of litigants and attor-
neys may, however, be substantial — yet attorneys and the public are usu-
ally ignorant of their promulgation and operation.

There are some signs, however, that organs of court reform are begin-
ning to recognize the need for public participation in developing guidelines.
One recent example is seen in the Federal Judicial Center's treatment of its
"Recommended Procedures for Handling Prisoner Civil Rights Cases in the
Federal Courts." Its proposals were marked "Tentative." The Special
Committee that drafted the report recommended that it "be circulated to
every federal judge and to appropriate bar association groups and law
school faculties."315 Obviously, prisoner groups, legal aid-public defender
organizations, and representatives of correctional groups such as associa-
tions of guards, should be given the opportunity to be heard. Forms for
orders included in the report, and a suggestion that the report be kept with
the judge's benchbook,316 indicate that it will have an impact at least as
great as many of the Federal Rules of Civil Procedure in controlling this
kind of litigation.

As another example, the manual which now governs procedure in
much complex and multidistrict litigation317 was prepared by federal judges
after extensive consultation with the bench, bar and law schools.318

The recommended A.B.A. procedure for adoption of standing guide-
lines also provides for public participation:

313. H.R. Rep. No. 702, 76th Cong.. 1st Sess. 2 (1939), cited in Chandler v. Judicial
Councils. 398 U.S. 74. 97 (1970).

314. See 28 U.S.C. § 620 (1970).

315. Letter from Judge Ruggero J. Aldisert to United States Judges, Circuit Court
Executives, and Clerks of Court (January' 30. 1976). By contrast, the memorandum of the
Deputy Director of the Administrative Office of the United States Courts (January 13. 1976),
indicated that the "Addendum to Guidelines to the Amendments to the Federal Rules of
Criminal Procedure Which Relate to the Preparation and Use of Presentence Reports" would
only be sent to "United States District Judges, Magistrates, Clerks of Court, Public Defen-
ders, and Probation Officerv"

316 "The report was prepared in loose leaf form to facilitate changes and additions. This
format also permits the inclusion of the report in a benchbook, thus enhancing its utility as a
reference tool." Letter from Judge Ruggero J. Aldisert to United States Judges, Circuit Court
Executives and Clerks of Courts (January 30. 1976).

317. Federal Judicial Center Manual for Complex Litigation (1973).

318. Id. at xiv-xvi. See also note 28 supra.

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960 COLUMBIA LAW REVIEW [Vol. 76:905

1. The court drafts proposed guidelines.

2. The court makes the proposed guidelines public by distribu-
tion to the community and to state and local news media,
news media organizations, bar organizations, law enforcement
agencies, public defenders' offices, prosecutors' offices and
such other interested persons as may come to the attention of
the court.

3. The court solicits written comments and suggestions as to the
guidelines to be submitted by a specified date.

4. The court schedules meetings between judges and interested
persons for open discussion of the proposed guidelines.

5. The court then determines guidelines to be adopted.

6. The guidelines are publicly distributed and published broadly
and generally in the community, including distribution to the
persons described in paragraph 2, with a notice that they will
be adopted absent a written objection to be filed with the
court by a specified date.

7. If there are no objections filed, the court adopts the guide-
lines.

8. If objections to the guidelines or any portion thereof are filed,
the court shall follow a procedure by which any persons could
be heard and present facts and arguments as to how or
whether the guidelines should be specifically modified.

9. After such proceeding, the court adopts final guidelines, stat-
ing the reasons for the adoption of the guidelines with specific
reference to any guideline which was the object of con-
troversy at the proceeding.

10. Review. It is recommended that some method of appellate
review at the behest of interested persons without reference to
a given case be afforded, since the guidelines are designed to
be implemented outside the context of any particular case.
Perhaps this could be accomplished by the same procedure
and on the same grounds as review of local rules. Perhaps the
appellate court as a supervisory court could be asked for
approval or modification of these guidelines. Perhaps a judi-
cial council would have the authority for a review. The
method of review is left for local implementation.

11. The standing guidelines should be subjected to periodic re-
view. Modification, either on the request of interested persons
or sua sponte by the court, shall be considered by following
the above adoption procedure.319

While adoption of these recommendations would substantially improve
present procedures for developing guidelines, two reservations may be
expressed. First, it probably would be more useful, in the light of prior
experience in this country, for the court to appoint an advisory committee
to make initial recommendations and propose drafts, rather than drafting
guidelines itself, as the A.B.A. procedure provides. Perhaps the American
Bar Association Committee felt that it was acting in this capacity and,
therefore, that this preliminary step was not necessary.

319. American Bar Association, Proposal. "Recommended Court Procedure to Accom-
modate Rights of Fair Trial and Free Press." quoted in Roney. The Bar Answers The
Challenge, 62 A. B.A.J. 60. 64 (1976).

339

1976] COURT RULEMAKING 961

Second, the wisdom of requiring appellate review" of guidelines is open
to serious question. Such a review would compromise the reviewing court
in the same way that prior review of rules does. A sufficient degree of
protection would be afforded by placing the review function in the Standing
Committee on Rules of the United States Judicial Conference; power could
remain in the full Judicial Conference to overrule a veto by the Committee
on Rules. The delay and opportunity to resort to Congress for protective
legislation might lead to more thorough consideration and possible com-
promises without jeopardizing the impartiality of the litigation process.

E. Individual Judge's Rules

Rule 83 of the Federal Rules of Civil Procedure provides that district
courts may adopt local rules "by action of a majority of the judges. . . ." It
has been suggested that this "majority requirement . . . constitutes a
narrowing of the statutory grant of rule-making power in 28 U.S.C. §
207i. "320 f^e limitation may be "desirable insofar as it promotes greater
uniformity of practice within a single district."321 If this is the purpose,
however, it has not always been achieved.

Particularly with the growth of individual calendars, as contrasted with
general calendars, there has been a tendency for individual judges to
develop their own practices. One recent study notes:

In addition to the . . . regularly reported sets of rules which
govern, inter alia, motion practice and calendar matters in the
Southern District, at least twenty-two of the twenty-four active
and four sitting senior judges have special motion and or calendar
rules with which counsel must be familiar. These special rules
vary greatly and lead to some confusion among litigants. . . .322

The report suggests "a more readily available published edition of each
judge's special rules and limited standardization. . . ."323

Practices of individual judges lie in a gray area between rulemaking
and the exercise of individual discretion. Some variation here is acceptable
and, perhaps, desirable since a judge may be more efficient if he or she is
comfortable with the details of his or her practice. But in some instances
the divergence seems unnecessarily idiosyncratic and a local rulemaking
process in which the bar and law schools participated might eliminate
unnecessary differences.324

320. Blair, supra note 297, at 518 n.6. Section 2071 of title 28 grants power to "all courts
established by Act of Congress [to] prescribe rules for the conduct of their business."

321. Blair, supra note 297, at 518 n.6.

322. Committee on the Federal Courts, The Association of the Bar of the City of New
York. Report Evaluating the Individual Assignment System in the Southern District of New
York After Three Years Experience 5 (July 8. 1975) (mimeograph).

323. Id.

324. The report notes:

Ten judges require . . . papers to be filed only in the Clerk's Office; six . . . require

340

962 COLUMBIA LAW REVIEW [Vol. 76:905

Conclusion

A. Suggested Changes in the National Rulemaking Process

1. Although the present division of national rulemaking authority
among the United States Judicial Conference and its committees, the
Supreme Court, and the President has worked fairly well, defects in the
distribution of authority and the process utilized suggest that revision of the
relevant statutes and practices is now desirable.

2. The Supreme Court should not adopt rules for any court except
itself. Its members have little expertise in most of the areas regulated by
rule, due to their lack of trial experience; and their heavy work load
prevents adequate study of the issues. While the Court's involvement
bestows prestige on the rules, it inhibits the Court itself and other courts
from impartially construing the rules.

3. The United States Judicial Conference should take the place of the
Supreme Court as the national rulemaking authority. This change would
not appreciably reduce the leadership role of the Chief Justice, who serves
as chairman of the Conference. If an independent body of judges rather
than a court is given responsibility for the rules, courts will be free to
consider the rules impartially.

4. The structure currently employed for rulemaking by the United
States Judicial Conference — that of a Standing Committee on National
Rules of Court Practice and Procedure, and satellite advisory com-
mittees— is sound and should be retained. With representatives of the bar.
bench and law schools on the committees and with the tradition of law
professor reporters, an orientation both practical and scholarly is achieved.
A Standing Committee of no more than fifteen members, with staggered
terms of five years, would seem desirable. Appointments should be made
by the Judicial Conference — which means practically speaking by the Chief
Justice with the advice of the Conference — to maintain the high status of
membership.

Ex-officio memberships are not required to ensure a broad range of
representation on the committees; the Chief Justice and Judicial Confer-
ence should be expected to consult on appointments with the United States
Attorney General, and with such organizations as the American Bar As-
sociation, the Legal Services Corporation, the American Association of.

duplicate sets to be filed in the Clerk's Office and in chambers, and one judge
requires papers to be filed only in chambers. . . . Ten judges specify that oral
argument is permitted only if the judge deems ii appropriate: three judges permit oral
argument on request of counsel, and three judges generall\ require oraJ argument on
all motions.

. . . Finally, two judges require the filing of a Note of Issue or Statement of
Readiness in all civil cases. Twenty judges do not have such a special rule, although
most of these judges ... do have published lists of civil cases read> for trial.
Id. at 40-42.

341

1976] COURT RULEMAKING 963

Law Schools and the National Legal Aid and Defender Association. The
desirability of minority representation should be considered in making
appointments. If Congress adopts a statute on the subject, precatory lan-
guage concerning the need for broad representation on the committees
would be appropriate.

Neither Congress nor the President should be represented on the
Standing or advisory committees. Even the presence of congressional
observers may give the senior members of Congress who designate them a
disproportionate influence in rulemaking and thus impair the ability of
Congress to assess proposed rules without bias.

5. The Standing Committee should widely publicize the proposals of
its advisory committees and hold public hearings upon them before rec-
ommending adoption to the Judicial Conference. Where the Standing
Committee's or an advisory' committee's judgment has been seriously
questioned, the Standing Committee should not hesitate to request relevant
studies from such groups as the Federal Judicial Center, the Amer-
ican Bar Foundation, the American Law Institute, and law schools.
Thorough airing of the issues before adoption may reduce congressional
desire to review the details of proposed rules.

6. Congress should retain the power to reject any proposed rule or
amendment by joint resolution within a limited period. Six months should
suffice. If Congress needs more time for review or wishes to amend the
rules, it should be required to employ the usual legislative procedure, with
presidential participation.

7. Congress should confine its involvement to the review of substan-
tial principles, rather than redrafting details of rules. Congress should not
make changes unless they constitute clear improvements.325

8. Substantive matters (such as rules of privilege), important quasi-
constitutional procedural matters (such as reduction in size of juries), or
jurisdictional matters (such as appeals from sentences), should be handled
by legislation and not by rules. It is appropriate for the rulemaking bodies
to draft and recommend legislation so that necessary improvements do not
"fall between the stools."

B. Suggested Changes in the Local Rulemaking and Guideline-Making
Process and in Rulemaking by Individual Judges

1. No local rule for an appellate or trial court "should be adopted
without publishing the proposal in advance and providing for a public
hearing after notice. Mere publication will not suffice: affirmative efforts

325. Congress' detailed intervention in the formulation of the Federal Rules of Evidence
and the 1975 Amendments to the Federal Rules of Criminal Procedure needlessly diminished
the prestige of the judiciary as a rulemaking institution: many of the congressional modifica-
tions involved no significant policy issues, but rather reflected personal predilections of
individual members of Congress.

342

964 COLUMBIA LAW REVIEW

should be made to engage the bar, bench and law schools in the process.
Thus, each court should utilize advisory committees that would call on
cooperating representatives of the public, including lay persons.

2. To preserve national uniformity and control excessive or unwise
local rulemaking, no local rule, other than a rule of the Supreme Court,
should be effective until it has been reported to, and approved by, the
Standing Committee on National Rules of Court Practice and Proce-
dure.326 If the Standing Committee rejects a rule or fails to approve it
within six months, the United States Judicial Conference should have the
right of approval.

3. Guidelines or their equivalent, whether adopted for a court by itself
or by another judicial body, should be published before they become
effective. Upon objection by any person, a public hearing should be held.

4. Individual judges should eliminate, as far as possible, rules and
practices which diverge from those of other judges on their court.

5. All local rules, guidelines and individual judge's rules should be
made available in a current and readily usable form to the bench, bar and
public.

C. Public Access to Materials

All documents considered in connection with a rule or guideline
adopted by the United States Judicial Conference or by any court (or other
judicial body) should be made available to the press and to members of the
public on demand. Public hearings should be recorded and a transcript
should be made similarly available. Wherever possible, a report should be
prepared detailing the reasons for adopting a rule. Such a report will assist
courts in interpreting the rule, and will protect against arbitrary conduct or
its appearance.

D. Initiating Change in the Rulemaking Process

Recommendations for changes in the rulemaking process could come
with propriety from any of the branches of government. Since the Judicial
Conference of the United States has a duty "to carry on a continuous
study of the operation and effect of the general rules of practice and
procedure,"327 it would seem desirable for the Conference and its commit-
tees to suggest changes in rulemaking procedures. Congress could then act
on these recommendations with the assistance of the executive branch.
Should the Conference fail to come forth with proposals within a reason-
able time. Congress or thcPresident through the Attorney General should
take the initiative.

326. An exception should be made to permit adoption of local rules without Committee
approval where necessary to meet emergency situations. The duration of such rules should be
limited to one year.

327. 28 U.S.C. § 331 (1970).

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Full text of "Rules Enabling Act of 1985 : hearing before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary, House of Representatives, Ninety-ninth Congress, first session, on H.R. 2633 and H.R. 3550 ... June 6, 1985"

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