Interview with Judge Anthony J. Scirica

Judge Anthony J. Scirica (3rd Cir.) was appointed to the U. S. District Court, Eastern District of Pennsylvania, in 1984 and was elevated to the U.S. Court of Appeals for the Third Circuit in 1987. He has served as the chair of the Judicial Conference Committee on Rules of Practice and Procedure since 1998.

_Q:What is your principal responsibility as chair of the Committee on Rules of Practice and Procedure?

_A: The principal responsibility is to preserve the integrity of the Rules Enabling Act that permits the Supreme Court to write procedural law. You may recall that in 1934, Congress delegated to the Supreme Court the authority to make procedural rules, subject to Congressional review.

_Q:How are the rules made?

_A:Most of the procedural rules are generated from the five advisory rules committees—Appellate, Bankruptcy, Civil, Criminal, and Evidence. After a period of public comment and revision, a rules change must be approved by the Standing Committee on Rules of Practice and Procedure and the Judicial Conference of the United States before submission to the Supreme Court. If adopted by the Supreme Court, a rule submitted to Congress by May 1 becomes law the following December 1 unless disapproved by both Houses of Congress. The full process generally takes three years. When necessary, it can be expedited, especially when directed by Congress.

Every rule is the product of an open, careful, and deliberative process. By law, all meetings and records of the rules committees are open to the public. This openness is a great advantage because we receive enormously helpful comments from the bench, bar, and the law schools.

Each rule runs the gauntlet of painstaking drafting in both the Advisory and Standing Committees, often with the benefit of public comment. The process is slow. But it ensures the rigorous scrutiny and public review we believe are essential to establish the credibility and legitimacy of the rulemaking process.

_Q:What steps have the rules committees taken to ensure the continued legitimacy of the rulemaking process?

_A:Retaining the public’s confidence in the rulemaking process is critical. The bench, bar, and, of course, Congress and the Executive Branch must be confident of the fairness and essential worth of the process. To that end, we reach out to all interested persons and groups. The rules committees maintain a constant dialogue with bar organizations, public interest groups, individual lawyers, the Department of Justice, and academics. We have points of contact with each of the 50 state bar associations. Representatives of major bar organizations regularly attend committee meetings. We have established a web site (www.uscourts.gov/rules) containing rules proposals and committee records that permit the public to submit comments over the Internet. Individual committee members frequently speak at bar and judicial conferences on rules- related issues. In addition, we have made changes to our pamphlets presenting proposed rules amendments, making them easier to read. All these measures have increased the visibility and accountability of the Judiciary’s rulemaking process.

As you know, the Rules Enabling Act requires us “to carry on a continuous study of the operation and effect” of the rules. The rules change proposals we receive from the bench, bar, and public help us meet our statutory responsibilities.

_Q:What are the limitations of the rulemaking authority?

_A:The Rules Enabling Act specifies that “the Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence,” but “such rules shall not abridge, enlarge or modify any substantive right.” For this reason, the rules committees are vigilant about proposals that might alter the substantive law. From time to time Congress considers statutory rules amendments. Accordingly, the rules committees closely monitor congressional activity. About 50 bills are introduced each session that affect the rules.

With the able assistance of Mike Blommer and his AO Legislative Affairs team, we have been largely successful in persuading Congress to channel possible legislative action through the Rules Enabling Act process. But deviations from the Rules Enabling Act have occurred, and some rules-related bills have been enacted, including legislation directly amending Evidence Rules 412-415 and establishing pleading requirements in the Private Securities Litigation Reform Act.

_Q:How frequently should the rules be amended?

_A:Only when necessary. The rules committees are sensitive to the burden imposed on the bench and bar whenever a rule is changed. The committee members include primarily federal judges, but also state supreme court justices, seasoned lawyers, Department of Justice officials, and academics. They understand the potential for disruption from frequent rule changes.

Even with the increase of suggested rules changes, we seriously consider every rule proposal. But most do not go forward. Only changes that address serious problems are acted on. Also, legislation can impact the rules. The Civil Justice Reform Act, for example, ushered in an era of procedural experimentation that we are still wrestling with.

Still, we recognize that rule changes may be necessary to meet new developments in law and practice. Cases are becoming more complex. Rules that work well for “average” cases may be inadequate in “complex” cases. The recent amendments to the civil discovery rules were designed to address that problem. Also, some rules have been overtaken by modern practice. The special master rule, for example, is being used in ways never envisioned by its authors.

_Q: What is the Local Rules Project and its status?

_A:In the 1980s, lawyers and bar organizations, notably the American Bar Association, asked Congress to halt a proliferation of local rules. In response, the rules committees began a national review of all local rules identifying those that duplicated or conflicted with national rules or federal statutes. That study was completed in 1987 and resulted in the elimination of many unnecessary local rules. Nonetheless, Congress enacted statutory provisions specifying procedures for adopting local rules and establishing a local rule oversight mechanism in the judicial councils.

Local rules are again attracting attention, especially from the ABA’s Litigation Section. The rules committees initiated a second local rules project in 1999. A report to the committee is due this January. Like the first project, it will identify inconsistent or duplicative local rules. After review, we will share the results with the courts so they may take any appropriate action. The project also will report on the increasing number of courts adopting the uniform numbering system directed by Rule 83(a)(1).

We have taken other steps to address local rules. Responding to a joint recommendation from our committee and the Committee on Court Administration and Case Management, the Judicial Conference has encouraged courts to post their local rules on the Internet. Now 83 of the 94 district courts have posted their local rules on the Internet.

The rules committees remain concerned with the proliferation of unnecessary local rules. At the same time, we recognize the desirability for courts to address truly local issues that merit special treatment.

_Q:What major projects are the rules committees presently undertaking?

_A:The Advisory Committee on Criminal Rules, chaired by Judge W. Eugene Davis, has just completed a comprehensive restyling of the criminal rules. The project follows hard on the heels of the Appellate Rules restyling, which took effect in 1998. The purpose of restyling is to clarify and simplify the rules so that they are easier to understand and apply, without changing their intended meaning. Over the years, rules are altered and clauses are added through the amendment process. Restyling provides an opportunity to remove ambiguities and standardize key words and phrases, as well as to consider possible substantive amendments in the future.

Although some predicted a temporary jump in litigation from the Ap-pellate Rules restyling, it has not materialized. The Criminal Rules project was more difficult, but we hope that any disruption will be minor. As you will see, the revised version will be a great improvement over the present rules. A comprehensive restyling of the Civil Rules poses much greater challenges. Its feasibility is presently under study.

_Q:Is anything being done about amending the rule governing class actions?

_A:A package of amendments to Civil Rule 23 focusing on judicial oversight of settlements; attorney appointment; attorney compensation; notice and the timing of the certification decision; attorney appointment; and attorney compen-sation has been put out for public comment. At the same time, the Advisory Committee on Civil Rules, chaired by Judge David F. Levi, is considering other proposals to address perceived problems involving duplicative or competing class actions filed in federal and state courts. This raises the question whether truly national class actions, involving countless state law claims from citizens throughout the country, should be tried or settled in a state or a federal trial court. The advisory committee has scheduled a major class action conference this fall at the University of Chicago Law School to discuss class action issues.

Class actions pose enormous challenges for the rules committees because they straddle the boundary between substantive and procedural law. Few would deny that the aggregation of claims (sometimes in the millions) has a profound effect on the substantive rights of the parties. Of course, Rule 23 is a procedural rule. So it remains our responsibility to address its consequences within the confines of the Rules Enabling Act. We know that Rule 23 has evolved beyond anything foreseen by its drafters in 1966. At the same time, we are sensitive to federal/state comity concerns, and maintain a continuing dialogue with the Committee on Federal/State Jurisdiction and representatives of the Conference of State Supreme Court Justices on these issues.