How the Rulemaking Process Works
The Federal Rules of Practice and Procedure govern the conduct of trials, appeals, and cases under Title 11 of the United States Code. The system of federal rules began with the Rules Enabling Act of 1934 (28 U.S.C. § 2071-2077). The Act authorized the Supreme Court to promulgate rules of procedure, which have the force and effect of law.
Over time, the work and oversight of the rulemaking process was delegated by the Court to committees of the Judicial Conference, the principal policy-making body of the U.S. Courts. In 1988, amendments to the Rules Enabling Act formalized this committee process. Today, the Judicial Conference’s Committee on Rules of Practice and Procedure, (“Standing Committee”) and its five advisory rules committees “carry on a continuous study of the operation and effect” of the federal rules as directed by the Rules Enabling Act.
Advisory Committees on Appellate, Bankruptcy, Civil, Criminal, and Evidence Rules evaluate suggestions (i.e. proposals) for rules amendments in the first instance. If an advisory committee pursues a proposal, it may seek permission from the Standing Committee to publish a draft of the contemplated amendment. Based on comments from the bench, bar, and general public, the advisory committee may then choose to discard, revise, or transmit the amendment as contemplated to the Standing Committee. The Standing Committee independently reviews the findings of the advisory committees and, if satisfied, recommends changes to the Judicial Conference, which in turn recommends changes to the Supreme Court. The Court considers the proposals and, if it concurs, officially promulgates the revised rules by order before May 1, to take effect no earlier than December 1 of the same year unless Congress enacts legislation to reject, modify, or defer the pending rules.
Learn more about the rulemaking process by reading the Overview for the Bench, Bar and Public.