MWORANM November 10, 1960

TO: The Chairman and Members of the Advisory Committee

on Bankruptcy Rules

FROM: Frank R. Kennedy, Reporter

SUBJECTs Conforming Rule Making in Bankruptcy to Other Kinds

of Hale Making in Federal Courts

The overriding purpose of the enabling legislation pursuant to

which the Advisory Committee on Bankruptcy Rules was appointed is "to

create a program. for improving the rulemaking process in the Federal

courts." H.R.Rep. No. 1670, 85th Cong., 2d Sess. 1 (1958). The

purpose is to be accomplished by authorizing the Judicial Conference

to engage iii a continuous study of the operation and effect of the

general rules of practice and procedure in those courts, including the

General Orders and Official Forms in Bankruptcy.

In the delegation of authority to the Judicial Conference to

recomm~end chaniges, there was no change in the responsibility of the

Supreme Court for rule making. Accordingly, the Supreme Court retains

the power to prescribe "All necessary rules, fornms, and orders as to

procedure" under the Bankruptcy Act, as provided in section 30 of the

Act, 11 U.S.C. 8 53. In most areas of its rule-making responsibility,

however, the Supreme Court is required by pertinent legislation to report

proposed rules to Congress. The rules so reported do not take effect

unless and until Congress has had a fair opportunity to scrutinize and

object to the proposals made by the Court. It is significant that

Congress has never acted in any way to prevent or delay the scheduled
II

Memorandum - 2

November 10, 1960

effectiveness of any rules reported to it by the Supreme Court, though

it has made a limited modification of rules of pleading for patent cases

(28 U.S.C. 8 282). Once rules reported to Congress by the Court have

gone into effect at the close of the statutory period, all conflicting

laws, including Congressional enactments, are superseded. No such

effect attaches to General Orders and Forms in Bankruptcy promulgated

pursuant to section 30 of the Bankruptcy Act. See Meek v. Centre

County Banking Co., 268 U.S. 426, h34 (1925); 2 Collier,

128b-85 (14th ed. 1940).

This is the pattern of rile making as originally prescribed for

the federal rules of civil procedure for the United States district

courts uniting procedures in law and equity. 48 Stat. 106h (1934).

The pattern not only governs the making of changes in the rules of

civil procedure (2B U.S.C. 9 2072); it has been adapted for use in the

making, of rules for criminal proceedings in the district courts up to

verdict (15 U.S.C. 8 3771), the rules for admiralty and maritime cases

(28 U.S.C. 5 2073), and the rules for the review of decisions of the

Tax Court (28 UoS.C. 8 207T). Of the rules of practice and procedure

to be studied by the Judicial Conference, only the following need not

be referred to Congress fe'ir p (1) rules, orders, and

forms in bankruptcy (11 U.S.C. 8 5-, (2) rules of practice and procedure in criminal proceedings after verdict and on appeal (18 U.S.C.

8 3772); and (3) rules for trial of cases before commissioners and

appeals therefrom (18 U.S.C. 8 3402).
Memorandum - 3

November 10, 1960

Notwithstanding the seeming care to preserve unimpaired the precise

variations of pattern in rule making, it is not believed that the legislation which brings the Judicial Conference into the rule-making process

embodies the result of any deliberation by Congress, or the sponsors of

the legislation., as to the proper relation of the Supreme Court's role

to that of Congress. This relation was collateral to the main thrust

of the legislation. If the suggestion was made in the course of the

legislative history that rule making in all the areas within the scope

of the Judicial Conference's new responsibility should conform to a

single pattern, it is likely that an awareness of the uncertain implications of the suggestion for bankruptcy and criminal practice was

enough to discourage support. It is nonetheless believed that rule

making in bankruptcy should conform tt• the pattern prescribed for rule

making in the areas of civil procedii-e and admviralty. Although no

reason for divergence is evident Lo this 0porter, no opinion is expressed

here, of course, as to whether rule making for criminal proceedings ought

likewise to conform.

It may well be queried whether it lies within our province to be

making proposals going to the statutory allocation of rule-making

responsibility among the Supreme Court and Congress. It may indeed be

pointed out that the original designation of this Committee as the

Advisory Committee on General Orders in Bankruptcy Signifies its exclusive concern with the needed revisions of the orders, and perhaps the

forms, promulgated by the Supreme Court pursuant to section 30 i
Memorandum -

November 10, 1960

of the Bankruptcy Act. While your doporter is not eager to enlarge

the scope of the eommittee's and his own responsibilities, it does not

appear necessary or wise to view our assignment so narrowly. Judge

Maris, Chairman of the Standing Committee on Rules of Practice and

Procedure, early suggested to the Chairman and tne Aeporter of this

eommittee that we might properly consider the advisability of recommending

legislation that would conform rule making in bankruptcy to the more

commonly prevailing pattern which requires submislion of the Supreme Court's

proposals to Congress. (He also suggested that it would be consistent with

the spirit of the enabling legislation itself to conform the designation

of our Committee to the simpler and shorter nares of the other five Advisory Committees. This suggestion has met with favor on the pert of the

Chairman, the Executive Secretary, and the Advisor as well as the Reporter

of the Committee. In any event, the four of us have found it convenient

to refer to the Advisory Committee on Bankruptcy nulee, whatever the

legitimacy of the shortened appellation.) It is understood that the

Chairman, the Executive Secretary, and the Advisor of this Committee

concur with the Reporter in thinking that the proposal under consideration lies within the legitimate scope of the Committee. Reflection on

the merits of the proposal has served to strengthen the original opinion

of the Reporter that it is sound.

The grant of rule-making authority to the Supreme Court by .9ection

30 of the Bankruptcy Act could hardly be phrased in terms more broad
Memorandum -

November 10, 1960

and general. Nevertheless, the scope of the Court's actual authorit.

is restrinted by teninmerous procedural provisions of the Bankruptcy

Act itself which constitute paramount. law. The Court' s banlruptcy rales

and forms merely implem.ent the Act or operete interstitially. It is not

to be expected that Congress will enlarge t.,o scope of the Supreme Court's

rule-making arthority in bankruptcy unless coupled Uith the kind of

safeguard included in sections 2072, 2072, and 2C714 of the judicial Code,

viz., the requirement that rules proposed by the Supreme Court shall be

reported to Congress, there to await the ipse of a statutory period

before going into effect. Pending the enactment of such a measure,

changes in bankruptcy practice anp procedure of any consequence irnust be

effected by the laborious and exnensive process of amendment of tne

Bankruptcy Act by Congress.

Refercnce to the bankruptcy legislation enacted by the last

Congress is illustrative and illumninating. Public Law 86-149 repealed

section 39a(9) of the Bankruptcy Act so an to eliminate a pointless

w reouirement respecting the transnission of papers by the referee

to the clerk of the district court. Public Law 86-6h amendsections

22s, 331, and 631 of the Act to authorize automatic reference of bankruptcy, Charter X1, and Chapter XIII cases by the clerk to the referee.

Public !Law 66-51 arended section 57 of the Act to eliminate the necessity

for an oath to accompsay a proof of claim. Public Law 86-662 amended

section 39c of tne Act to clarify the time allowable for seeking review

of referees' orders. Public Lav 86-631 amrenaed sections 58e and 678

of the Act to reu•ce the notification requirements theretofore provided
Memorandum - 6

November 10, 1960

in the Act for the benefit of the Secretary of the Treasury. Comparable

changes elsewhere within the domain of federal. civil procedure would be

initially proposed by the Supreme Court and would become effective after

a lapse of the statutory period following their being reported to

Congre ss.

It seems important, if not imperative, for an early conclusion to

be reached as to the statutory disposition of the rule-making authority

in bankruptcy cases. If conformity is to be sought and obtained, the

scope of changes to be proposed thereafter will be materially affected,

inasamch as existing provisions in the Bankruptcy Act will no longer be

a limiting factor. On the assumption that such conformity is at least

a promising possibility, the National Bankruptcy Conference has deleted

proposed revisions of sections 18, 68a, 133, and 136 from its Omnibus

(Noncontroversial) Bill which is being readied for introduction in the

next Congress. The Conference has instead submitted its proposed

revisions of these sections to this Gommittee for consideration.

The desirability of vesting at least the initiative and primary

responnibility for rule making in the Judiciary is generally conceded

today ond is the premise of the legislation pursuant to which this

Advisor.- Committee functions. See Moore, Address, 21 F.R.D. 125 (1958);

Section of Judicial Administration of A.B.A., The Improvement of the

Administration of Justice 10-11 (3d ed. 1952). The arguments against

statutory regulation of practice and in favor of conferring broad

judicial authority to make rules have been sumnarized recently by
Memorandum - 7

November 10, 1960

Joiner and Miller in Rules of Practice and Procedure: A Study of Judicial

Rule Making, 55 Mich.L.Rev. 623 at 642-43 (1957). See also Clark, The

Challenge of a New Federal Civil Procedure, 20 Corn.L.Q. 443, 457 (1935);

Pound, The Rule-Making Power of the Courts, 12 A. B.A.J. 599, 602-03

(1926); Section of Judicial Administration of A.B.A., f , at 11-12;

Wright, Rule 56(e)s A Case Study on the Need for Amending the Federal

Rules, 69 Harv.L.Rev. 839, 857-62 (1958).

It is arguable that exclusive rule-making authority should be vested

in the Supreme Court, i.e., free of any power in Congress to object or

override by contradictory legislation. Cf. Winberry v. Salisbury, 5 N.J.

240, 74 A.2d 4o6 (1950), cert.denied, 340 U.S. 877 (1950). It seems

peculiarly inappropriate to argue for so drastic a change in the authority

of the Court in the realm of bankruptcy practice and procedure. Doubts

as to the wisdom of the absolutist position in the realm of state court

rule making have been exposed by Kaplan and Greene in The Legislature's

Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury,

65 Harv.L.Rev. 234 (1951); and by Levin and Amsterdam'n Legislative Contr.ol

over Judicial Rule-Making: A Problem in Constitutional Hevision, 107 U. of

Pa.L.Rev. 1 (1958). The ultimate power of Congress over the practice

and procedure of the federal couzts has often been recognized and seldom,

perhaps never seriously, challenged. Sibbach v. Wilson & Co., 312 U.S. 1,

9 (19h1). The question posed here is more political than legal, since

it contemplates asking Congress to give the Court a carte blanche in an

area where the role of Congress has been dominant. Although Judge Clark
Memorandum- 8

November 10, 1960

questioned features of the reporting requirement as forTaulated and applied

to the effectuation of the Federal Rules of Civil Procedure and their

amendments prior to 1950 (see his Code Pleading ld4-15 (2d ed. 1947);

The Influence of Federal Procedural Reform, 13 L.& Contemp.Prob. 144,

151-52 (1948)), he seems to have acquiesced in the version of the requirement as it has read since the amendment of 28 U.S.C. 8 2072 in 1950. See

Two Decades of the Federal Civil Rules, 58 Col.L.Rev. 4i35, 443 (1958).

He applauds the Congressional indisposition to tinker with procedure notwithstanding its acknowledged power to do so and the opportunity afforded

by the reporting requirement and the provision for postponement of the

effectiveness of the rules, and he concurs in the consensus as to the

admirable results that have been achieved under the existing arrangement

for effectuating the federal civil rules. The model provided by sections

2072, 2073, and 207h seems worthy of emulation in the making of rules for

bankruptcy.

Conformity could be achieved pursuant to a new section 207h of the

Judicial Code xeading as follows:

The 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 courts of

bankruptcy.

Such rules shall not abridge, enlarge, or modify any

substantive right.
Memorandum - 9

November 10, 1960

Such rules shall not take effect until they have been reported

to Congress by the Chief Justice at or after the beginning of a

regular session thereof but not later than the first day of May

and until the expiration of ninety days after they have been thus

reported.

All laws in conflict with such rules shall be of no further

foroc or effect after such rules have taken effect. Nothing 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.

ThiE language, it will be noted, follows closely that of 28 U.S.C.

8 2072, substituting "courts of bankruptcy" in the first paragraph for

':dis;rict courts of the United States in civil actions and omitting

the guaranty of the right of trial by jury in the second paragraph.

It may be wondered why the Reporter has not suggested the possibility of achieving the purpose of the proposed new section 2075 of the

Judicial Code by the simpler technique of tacking onpagatsummW

appropriate words to present section 2072 or, perhaps even more to the

point, to present section 2073. There is considerable duplication of

language in sections 2072, 2073, and 207h, and some of the discrepancies,

where they occur, seer, more likely to have been inadvertent than deliberate.

(For instance, only section 2074 explicitly confers power on the Supreme

Court to "amend," as well as to "prescribe," rules; only section 2073
Memorandum -- 10

November 10, 1960

omits the word "enlarge" in the second paragraph in the passage putting

"substantive right" beyond the scope of the ruled.) It may well be that

the Standing Committee on Rules of Practice and Procedure will wish to

consider this Committee's recommendation as part and parcel of a larger

proposal affecting areas within the cognizance of other advisory committees. Judge Clark on that Committee has previously pointed out the

anom.aly thLt exists with respect to the Rules of Criminal Procedure, some

of which ne- f-d not be. reported to Congress and some of which do have to be

so reported before they become effective. See his Code Pleading 45 n. 130

(2d ed. 1947). It has seemed unnecessary and premature at ts-•V-fto---

entertain-further thoughts about the possibility of tacking its proposal

on or merging it into some other statute.

"Courts of bankruaptcy" by definition in section 1(10) of the

Bankrnptcy Act includes the United States district courts but it also

includes district courts of the Territories and possessions to which the

Bankruptcy Act applies. Ascirtairment of the courts actually embraced

reouires reference to a variety of statutes. See 1 Collier, Bankruptcy

para. 1.10 (11ith ed. rev. 1956).

Note should be taken here of Professor Moore's call for a "welding

together of the admiralty and bankruptcy jurisdictions to the already

welded low and equity Jurisdictions, and one civil procedure for the

combined jurisdictions." 5 Moore, Federal Practice 68-69 (2d ed. 195'1).

This proposal has implications for thds Committee as well as the Advisory

Committee on Admiralty Rules. The uniftcationffuits in admiralty with

those at law and in equity into one form of civil action was urged by
Memorandum - 11

November 10, 1960

Chief Justice Taft nearly forty years ago. Three Needed Steps of Progress,

8 A.B.A.J. 34, 35 (1922). Professor Brainerd Currie, Reporter for the

Admiralty Rules Committee, has prepared a; Memorandum on the Need for and

the Desirability of Unification of the Practice in Civil ard Admiralty

Cases Under a Single Set of Rules of Procedure.

As there are difficulties to be overcome in the unification of

admiralty with law and equity, so there are difficulties, entirely different,

in undertaking to achieve an integration of bankruptcy practice into general

civil practice. The most obvious differentiating factor in the picture

Ls that rules of bankruptcy practice must take into account the fact that

most bankruptcy proceedings are before a referee, whose jurisdiction is

Limited to bankruptcy cases. By definition the word "court," wherever

,used in the Bankruptcy Act, includes a referee as well as a judge. It

does not seem permissible to argue that the term "court of bankruptcy"

does not embrace a referee. While it may be entirely possible to draft

ai single set of rules of civil practice and procedure for federal district -- I I a.% * ir -- A- -_ __•

:ourt•IAiuI the referee as much as V e f s-h. y

possible to intefrate the bankruptcy court md the district court.

When the court of bankruptcy is a referee, it is necessarily a

'Legislative as distinguished from a constitutional colrt. That i, it

:Is a court created by Congress pursuant to Article III. Only on this

nssumption is it possible for Congress to provide for six-year terms

for referees, as it does in section 31; of the Bankruptcy Act, rather than

the tenure "during good Behaviour"' assured to judges of Article III courts.
Menorandum - 12

November 10, 1960

Only on that basis was the Referees' Salary Act of l9h6 free of constitutional doubt. This classification of the court of bankruptcy when conducted

by the referee as a legislative court has additional consequences of conceivable relevance in this Committee's deliberations. For instance, since

conditutional courts cannot be invested with administrative (or legislative)

functions, it may be argued that any rule or statute that purports to

authorize a court of bankruptcy to dispense with Whe appointment of a

trustee and itself to acdinister an estate in bankruptcy by setting apart

exemptions, conducting sales, etc. would transcend constitutional limitations. Moreover, exercises of adminiitrative authority are nonreviewable

by constitutional courts, including the district, courts and courts of

appeals of the United States. Other limitations on constitutional courts--

their disability to render advisory opinions and the imrmnity of their

judgments from legislative or executive revision--are probably of no

importance to this discussion.

It neelsto be acknowledged here thAt there are courts that are

apparently in the convenient category of hybrid courts, i.e., courts that

are constitutional for some purposes and legisiative for others. See

1 Moore, Federal Practice parp. O.!L7 (2d ed. 1959). It may be anticipated

that thp Supreme Court will not be hospitable to efforts on the part of

its advisers to enlarge this category. Cf. National Mutual Insurance Co.

v. Tidewater Transfer Co., 337 U.S. 582, 609, 626 (J. Rutledge, concurring),

639-10 (C. J. Vinson, dissentinq), 652 (J. Frankfurter, d]issenting)(l9tg).

It is not assmLed that this Comnittee is interested in pursuing the
Memorandum - 13

November 10, 1960

the possibility of either eliminating referees in bankruptcy from the

federal Judiciary or establishing for them the statute of judges of

constitutional courts.

Although it seems to be an incontestable conclusion that the

referee presides over a legislative court when sitting as a court of

bankruptcy, a judge of a district court of the United States presides

over a constitutional court when sitting as a court of bankruptcy or

when reviewing a determination of a referee in bankruptcy. While

National -Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582

(1956), is not susceptible to wholly satisfactory reconciliation, it

is fair to say that the district courts of the United States located in

the states always sit as constitutional courts and cannot be invested

with jurisdiction except pursuant to Article III. 1 Moore, Federal

Practice 5h, 61 (2d ed. 1959). Accordingly it seems necessary to bear

in mind that the identity of the court ofh bankruptcy when conducted by

the referee must remain distinct from that of the court of bankruptcy

when conducted by the judge: A district court of the United States

does not mean or include a referee sitting as a court of bankruptcy, and

rules and forms of practice and procedure cannot be drafted which treat

the referee's court as a district court.

As has been intimated this conclusion does not necessarily militate

against the possibility of unification of the rules of practice and

procedure for the courts of bankruptcy with rules applicable in the district courts when proceeding in law, equity, or admiralty. By virtue of

General Order 37, the Federal Rules of Civil Procedure already apply in
Memorandum - 14

November 10, 1960

bankruptcy proceedings to the extent they are not inconsistent with the

Bankruptcy Act or the General Orders and "as nearly as fthey7 may be"

applied. See also General Order 36, making the Rules applicable to

appeals in bankruptcy to the extent the Bankrutpcy Act permits. It

seens clear that the scope of application can be enlarged and achievement

of the Congressional obJectives spelled out in the 1958 amendment of 28

U.S.C. 8 331 facilitated by enactment of the suggested new section 2075

of the Judicial Code.

A problem requiring comment here because of its close relation to

what has been said and because it is a source of some confusion involves

the bifurcation of bankruptcy jurisdiction and proceedings into those

that are summary and those that are plenary. Generally speaking it may

be said that a court of bankruptcy has no jurisdiction of plenary proceedings; that is, its Jurisdiction is summary when it exists at all.

MacLachlan. Bankruptcy 20h (1956).q

ýSuch a statement requires explanation of the references to plenary proceedings in a court of bankruptcy in sections 60b, 67e, and 70e of the

Bankruptcy Act. As Professor MacLachlan has pointed out in his treatise

(at p. 204), these are "inartistic references." When plenary proceedings

are necessary under these and most other sections of the Bankruptcy Act,

the federal court having jurisdiction is not the bankruptcy court but

the district c6Urjtof the Unte Std at. Accordingly. the referee in binnkruptc!

does not sit in such proceedings, and the Federal Rules of Civil Procedure

apply ex _roprio vio•re, not by reason of anything in General Order 37.
Memorandum - 15

November 10i 1960

The General Orders and Forms in Bknkruptcy do not apply at all in such

plenary proceedings. MacLachlan, Bankruptcy 213, 248 (1956). Some

qualification of the sLatement that a bankruptcy court has no plenary

jurisdiction may be required by virtue of the decision in Austrian v.

Williams, 331 U.S. 642 (1947), uhere the Court held that "Congress by

the elimination of & 23 /In 8 1027 to establish the jurisdiction of

federal courts to hear plenary suits brought by a §hapter 1g reorganization trustee, even though diversity or other usual ground for federal

jurisdiction is lacking." The rationale rested this grant of plenary

jurisdiction on section 2a of the Bankruptcy Act, which explicitly

confers the jurisdiction it defines on "courts of bankruptcy." Plenary

actions instituted by the trustee in bankrupto.y in federal courts should

nonetheless be governed by the Federal Rules of Civil Procedure, just as

actions instituted in federal court under sections 60b, 67e, and 70e

are so governed.

A word should be said about the suggested omrissiotn of any reservation

regarding jury trial in the proposed new statute comparable to the guaranty

now appearing in the second paragraph of 28 U.S.C. 8 2072. There is no

"right of trial by jury as at common law and as declared bý, the Seventh

Amendment to the Constitution" in bankruptcy proceedings. 5 Moore,

Federal Practice 215 (2d ed. 19el); 2 Collier, Bankruptcy 224-25 (lhth

ed. 1940). Accordingly it seems unnecessary and inappropriate to include

any such reference to Jury trial in the proposed new section. There is,

of course, a right to Jury trial in bankruptcy proceedings as to particular
Memorandum - 16

November 10, 1960

issues by express grant of Congress in section 19 of the Bankruptcy Act.

It seems unnecessary and unwise to refer to the statutory right to jury

trial in bankruptcy proceedings in the proposed 28 U.S.C. 8 207F.

Congress has provided for jury trial in numerous instances where there

is no constitutional right. Rule 38(a) of the Federal Rules of Civil

Procedure in general preserves pre-existing rights to jury trial granted

by federal statute as well as by the Seventh Amendment to the Constitution.

The rule-making power granted the Supreme Court by section 2072 of the

Judicial Code empowers the Court to modify or even to withdraw a right

to jury trial previously given by Congress, subject, of course, to the

Acknowledged Congressional power to disapprove and override. The proviaons of Rule 71A of the Federal Rules of Civil Procedure dealing with

jury trial supersede the right to jury trial in condemnation cases

previously predicated on Congressional enactments. 5 Moore, Federal

Practice 255 (2d ed. 1951).-

•It is believed that the Court's power with respect to Jury trials

in bankruptcy proceedings should have the same reach as it now has with

respect to lury trials in civil actions generally. It may be noted

that reference to jury tkial has been similarly omitted in the statute

conferring rule-making authority for admiralty cases, even though Congress

has provided for jury trial in at least one instance of admiralty jurisdiction. 5 Moore, Federal Practice par&. 38.35 (2d ed. 1951).

It is a fair sunnisu that substantial progress in the direction

of the goal of unification of' admiralty with law and equity practice

in the federal courts will be made as the result of the work of the
Memorandum - 17

November 10, 1960

Advisovy Committee on Admiralty Rules. Is a parallel development toward

the integration of bankruptcy practice also a desideratum? Unification

of practice would appear prima facie to serve the statutory purpose of

promoting "simplicity of procedure" and perhaps also contribute to

"fairness in administration, the just determination of litigation, and

the elimination of unjustifiable expense and delay." (These are the

objectives made explicit in the Congressional enactment authorizing the

Judicial Conference to conduct the continuous study of rules of practice

and procedure, 72 Stat. 356 (1958), amending 28 U.S.C. 8 331.) Whatever

the advantages of unification, there will remain a need for rules and

forms of practice and procedure that have no place except in bankruptcy.

Whether this special need is warrant for a separate set of Bankruptcy

Rules and Forms or whether the needs of bankruptcy may be adequately

served by supplementing the Federal Rules and Forms by appropriate words,

clauses, subdivisions, and particular rules and fonrs does not appear

to require an anwer at this stage. \

If the proposal here made to conform rule making in bankrpptcy

to that prescribed for civil and admiralty rules meets approval at all

levels and should become duly enacted law, the dimensions of the assignment to this Committee will be considerably enlarged. A number of

changes in the Bankruptcy Act will be necessary. Presmabil• atction 30

should be repealed at the some time as the new authority is granted.

Likewise, the seventh sentence of section 77(a), which grants rule-making

authority to the Supreme Court to aid courts in exercising jurisdiction

under that section, should probably be deleted. \careful1 otidly of
Memorandum - -18 A November 10,, 1960

f4 These materials will be useftl background for a study of the

needed changes in the Bankruptcy Act. As earlier noted, the National

133,ruptoy Conference has indicated its feeling that sections 18, 68,

133 and 136 are procedural and properly within the scope of the rule-.

making authority of the &preme Court if granted in the terns here

proposed. A preliminary survey of the Bankruptcy Act suggests that

the following additional sections would probably be superseded by

rules made by the Courts 19b, 20, 21a-f and i-k, 22, 25, 26, 28, 31,

fl7, 119, 120, 1•.1, 142, 143, 144i, 313(3), 315, 331t 413(3), 415, 9

131, 613(2), 615, 631.

fthe doraain evior.ceCi by the bo.inda ...es of "1 r-ctice and procedure" in banriruptcy will be required. There Is a co-nsicie-a..

ble literature concerned v.ith this subject a9 it bears on

rule •iaklnf in general, I.e., withrut irrticulc r reference

to bankruptcy. :ee, 0.'., Jolner L x Jliler, rules of Iracand tice1 rOcedure: 2 tu y ')f JuHiiual iuie-: akinT, [;5 Lic, .

L..:ev. 44-53 14JL/Ji Lei LeVn & 'isterctar, Lerislative "ntrol ovler Jui!cial -ule- .-akin-:: A 1rotlern in "on-ti.ution3 L e- i J-on, l0t U.'4 . - .L.Rev!

vi • . . i, 14-24 (195Q•- l s, The ;:urce

of Autilority for Iui:s of Court lffectinr rocebure, ' 22 2ash.

U.i.:L. 45-, 462-64 (iJ67).