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October 2009

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This article is in the news archives --- for current news go to the Third Branch News.


A Brief History of the Federal Rulemaking Process*

1934 28 U.S.C. section 331 delegates to the Supreme Court the explicit power to prescribe rules for the district courts governing practice and procedure in civil actions.
1935 The Supreme Court appoints a blue ribbon advisory committee to draft the first Federal Rules of Civil Procedure.
1938 The Federal Rules of Civil Procedure take effect in September.
1940 Congress authorizes the Supreme Court to promulgate rules governing criminal cases in the district courts.
1946 The Federal Rules of Criminal Procedure take effect in March.
1958 Congress enacts legislation transferring the major responsibility for the rulemaking function from the Supreme Court to the Judicial Conference of the United States. The Conference is mandated to carry on a continuous study of the operation and effect of the [federal] rules and to recommend appropriate amendments to the rules. The Conference establishes the Standing Committee on Rules of Practice and Procedure and five advisory committees.
1965 Chief Justice Earl Warren appoints an advisory committee to draft Rules of Evidence.
1966 The Admiralty Rules are merged into the Federal Rules of Civil Procedure.
1972 The Federal Rules of Evidence are transmitted to Congress, which defers the proposed rules and holds hearings on them. The rules process is criticized by Congress for not being sufficiently open and allowing adequate public input.
1973 The Federal Bankruptcy Rules become law.
1975 The Federal Rules of Evidence, revised by Congress, are enacted into law.
1977 Rules governing post-conviction collateral remedies for prisoners take effect.
1980 Chief Justice Warren requests that the Judicial Conference and the Federal Judicial Center study the Rules enabling process in light of criticism from Congress. The Rules Committee begins a comprehensive review of the rulemaking procedure.
1983 The House Judiciary Subcommittee on Courts, Civil Liberties and the Administration of Justice begins its review of the rulemaking process.
1988 Congress amends the 1934 Rules Enabling Act to codify formally the rulemaking procedures, to stem the proliferation of local rules of courts, and to require that all meetings of the Rules committees be open to the public.
*For more on the history of the federal rulemaking process, current procedures, and future initiatives, please read, "Renewal of the Federal Rulemaking Process," by Peter G. McCabe, in the June 1995, Volume 44, Number 5, issue of the American University Law Review, which can be found on the federal rulemaking website at www.uscourts.gov/rules/index.html.