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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.


Celebrating a Masterpiece: The 75th Anniversary of the Rules Enabling Act

As the Rules Enabling Act celebrates its 75th anniversary this year, The Third Branch spoke about the Act and its impact on the federal Judiciary with Judge Lee Rosenthal (S.D. Tex.), chair since 2007 of the Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee), who also served on the Advisory Committee on Civil Rules from 1996–2003 and as its chair from 2003–2007; with Judge David F. Levi, now dean of the Duke University School of Law, who served on the Civil Rules Advisory Committee from 1994–2003, and as chair of the Standing Committee from 2003–2007; with Chief Judge Anthony J. Scirica (3rd Cir.), who served on the Civil Rules Advisory Committee from 1992–1998, and as chair of the Standing Committee from 1998–2003; and with Judge Alicemarie Stotler (C.D. Cal.), who served as a member of the Standing Committee from 1991–1993, and as its chair from 1993–1998.

On the Rules Enabling Act . . .

Judge Alicemarie Stotler: I think it’s a masterpiece, in the sense that it contemplated a careful review process, a vetting process, and yet has a balance so that, if there’s something amiss in the eyes of Congress, they have a way to stop it. It has in place a complete flow of rule making. The Supreme Court and Congress can say yes or no, and all of us who have a concern with procedure have our say. It’s a very thoughtful procedure that gave us, who live in this world of federal courts and procedures, a mechanism if we wanted to make changes.

Dean David F. Levi: What I take away from it is great admiration for a certain kind of decision-making process that is very open. It is such a good mechanism for dealing with something complicated, where unintended consequences are likely to be the order of the day.

Judge Anthony J. Scirica: I think it was a brilliant solution to the making of procedural law. It has been described as a treaty between the Legislative and the Judicial–co-equal branches of government. I think it functions enormously well. I would not change any of it.

On the impact of the Act on the federal court system . . .

Judge Lee Rosenthal: It’s hard to know what life would have been like without the Rules Enabling Act because it has so shaped the way in which we do business. The first set of rules enacted were the Federal Rules of Civil Procedure in 1938 and the subsequent sets of rules followed. But what the Rules of Civil Procedure did, in one fell swoop, was provide a single set of rules for every federal court in the country. It merged law and equity. It’s hard to imagine a set of rules having that kind of revolutionary scope and impact today.

Levi: The fundamental premise of the Federal Rules is that a lawyer with the civil, the bankruptcy, the evidence rules, or the criminal rules in hand can be confident in any federal courthouse in this country. There’s an efficiency in that. There’s a sense of fairness in that. There’s no local advantage. It’s a nationwide court system for national law. And that is the basic philosophy of the Federal Rules.

On criticism that Rule change comes slowly–and the criticism that there are too many changes . . .

Scirica: It’s not too slow; it’s deliberate, careful, and thoughtful–and it should be that way. The procedural law is very important and changes should only be adopted after a great deal of thought. The openness mandated by Congress facilitates the process, which of course requires consideration by the Judicial Conference, then adoption by the Supreme Court, and then a seven-month hiatus on the part of Congress when they consider whether they want to permit the rules to become law. So the structure builds in a considerable period of time, but that’s all to the good. The process ensures the rigorous scrutiny and public review essential to establish the credibility and legitimacy of the rulemaking process.

Rosenthal: Sometimes people view the frequency of the changes as unsettling. The bar and judges need time to adjust to changes, and we don’t want the rules to change the way phone books change, as some have characterized it. At the same time, the world–and practice–change incredibly quickly. We recognize the danger to the Rules if they become divorced from practice and that separation solidifies. So we are always balancing the need to keep the system current without changing the Rules so often that it is disrupting.

Levi: There is empirical work that is done, so we’re not just making guesses about how the system is operating and whether a new rule is necessary or not. And then the different bar associations and individual judges and lawyers around the country contribute immensely to the process by writing, by testifying, or by talking to committee members informally. It is quite a reticulated process, with lots of decision-making stages and opportunities for public comment, for review and reconsideration by the committee (see Timeline on pages 10–11). You could say that because it involves so much openness and because these topics are so complicated, there’s a tendency to be too cautious. That might be right. On the other hand, it’s a system that affects the people’s life, property, and liberty and most of us would say that caution is appropriate. The point is that you don’t do it lightly.

Stotler: I have a very expansive overview of how this process should work. It’s meant to take a long time because, if we’re going to affect 94 districts and all the judges and lawyers who practice, we want to make darn sure that this is going to work out fairly and efficiently. It can be exhausting, but I think the process is meant to give all the participants time to weigh in. In short, there shouldn’t be a need for a quickie rule of procedure change.

On Rule amendments . . .

Rosenthal: The amount of work that is done at the advisory committee level, before any rule amendment is even proposed, is huge. If we get a proposal for a rule change or a complaint about practice under the rule, we first have to decide whether the complaint is rule-based, that is, is it a problem created by the way the rule is written? We look at the historical background, to the practice problem that’s reported. We look at the case law. We often will reach out and talk to judges, to groups of lawyers, or to members of academe to get the benefit of their experience, and to see if it’s a shared problem. We’ll do empirical research. We’ll gather a whole lot of information and analyze. All of that occurs before an advisory committee even makes a recommendation.

Scirica: The advisory committees’ makeup gives different points of view, different perspectives throughout the rulemaking process. The lawyers are crucial because they are in the forefront. They’re using the rules as practitioners, and they have a great deal of knowledge as to how the rules are working in various situations. The academics take a longer view. They’re constantly thinking and re-thinking how the system can be improved. And judges, of course, have the responsibility to make sure that the rules are even-handed and promote, at least in the civil system, the resolution of disputes without undue cost or delay. The combination brings the best thinking all together in one place.

Stotler: We have a lot of perspectives around the Committee table, and we know that some of the suggestions for rule changes are non-starters. But somebody thought that a fix was needed, so we give it its due. But unless somebody at the table says, this is really going to help matters, this is really going to make things more efficient, or this is going to make things less expensive, it’s probably not going to go anywhere.

On whether the Rules reflect the current state of litigation or anticipate what might be needed . . .

Rosenthal: We generally don’t move that fast. And that’s good. It takes three years for even the smallest rule change, absent some sort of very unusual expedited approach. So we usually have the benefit of enough time to understand the consequences of what we are proposing. Now, if there’s a statute that we know is imminent or just passed, yes, we’ll make preparations. For example, when the recent bankruptcy reform act passed, that required immediate action and a huge number of rule changes. But we know the importance of really understanding what is happening in the courts before we make a rule change.

Stotler: I think the rule amendments generally do bubble up from the real world of business and criminal procedure and it’s not usually the judges who are looking to make changes. You can take e-discovery as a prime example. All of a sudden, litigators and lawyers realized more than half of their discovery was now contained on a computer chip someplace. So those rules procedures were responsive to what the lawyers and litigants needed to have changed in order to make sure that when that case went to trial it has a fair, level playing field as far as the discovery goes.

Scirica: The Rules Enabling Act asks the Supreme Court to continually monitor the rules, engage in a continuous study of the operation of the rules–and that’s what we do. We get suggestions from judges, from lawyers, from academics as to whether the Rules are functioning properly and suggestions for their amendment. The Rules committees are, at the same time, reacting to suggestions, reacting to changes in the practice of law, and they’re thinking of ways themselves to improve the rules.

Levi: When you’re devising rules for a litigation system, you have to realize that the system itself is a dynamic one that is ever changing. So, to expect that the rules would not change means that they were probably not speaking to the actual problems coming up in litigation. When that happens, there is a vacuum and something else will take the place. By and large, that something else will either be local rules or orders that are developed by individual judges. If that continues, you get different districts diverging in their practice. If the rules don’t keep pace with the change in national litigation, then lawyers and litigants will be deprived of that fundamental premise that the Federal Rules of Procedure are the same throughout the country.

On the interaction of the advisory committee and Standing Committee with Congress . . .

Rosenthal: There are three kinds of exchanges between the courts and Congress established by the Rules Enabling Act. One, in which we say to Congress: “Here’s what we’ve done. Please look at it carefully. We’re happy to answer questions, but we would like you to do nothing so this can be enacted.” The second, in which we go to Congress and say, “Please affirmatively enact this to help the rules work better.” And then the third, in which Congress wants to do something that would directly affect, by statute, the rules and we go to Congress and say, “Please don’t, and here are the reasons we have.” All of those things are part of this partnership. It’s a partnership in which both sides make important contributions that take advantage of their distinct areas of expertise and the resources and processes that each can bring to bear.

Levi: One part of the rules process that isn’t obvious to outsiders is the amount of consultation with committee chairs and staff as to the rules that will be of interest to Congress. The invitation is always put out to Congress to attend conferences, perhaps to consider materials and empirical studies that have been developed by the Federal Judicial Center, and to come to committee meetings where there may be information or testimony or a panel discussion.

Scirica: Like all treaties between powerful actors, there is bound to be tension and conflict. But in my view, the treaty performs admirably. Its success depends on a delicate balance of authority, on mutual respect, on cooperation between the Judicial and Legislative branches of government. And, at least since the adoption of the 1988 amendments, the result has been deliberative rulemaking, largely insulated from the influence of raw political interests.

On transparency . . .

Rosenthal: Particularly since 1988, when revisions were made to the Act, the Rules Enabling Act has ensured that there is inclusiveness and transparency. Instead of having small groups of people meeting privately, the participants in the entire process were expanded and sunshine became the rule. All of that has, of course, been increased exponentially by the Internet. Not only do we now have public access to what we’re doing, we have instantaneous and easy public access. With a push of button, we disseminate information about what we’re doing to everyone, and have comments and discussion carried on remotely, as well as in the public hearings. We have a much more robust public debate than could have been possible previously.

Scirica: The openness mandated by Congress plays a crucial role. It encourages the expression of different points of view and provides the constructive criticism essential for careful deliberative rulemaking. Each rule runs the gauntlet of painstaking drafting in both the Advisory and Standing Committees, always with the benefit of public comment from experts and generalists.

On the future of the Rules Enabling Act . . .

Scirica: In its current form, the Rules Enabling Act is structurally sound, carefully administered, and, most importantly, has resulted in thoughtful rules. It is well worth preserving. But without comity and cooperation among all three branches of government, it cannot function. And comity requires continuing dialogue and mutual respect.

Levi: I would say that the Rules enabling system works very well. However, I think, particularly in the civil litigation area, that there’s a sense of uncertainty about where we are heading. There are fewer trials–that’s of concern to many–and the system does seem unduly expensive. We have a set of rules that are designed for trial, and yet we know that most cases aren’t going to go to trial.

Rosenthal: Seventy-five years is a long time. It would be easy to take for granted the partnership between Congress and the Judiciary in the Rules Enabling Act, kind of like a very long friendship or a very long marriage. But, just like any successful partnership, this one requires very careful, indeed loving, attention. With full appreciation expressed to the other partner for the unique contributions that it makes, and with the mutual respect that a successful partnership requires to continue to be successful. Happy anniversary!