RENEWAL OF THE FEDERAL RULEMAKING PROCESS*

 By Peter G. McCabe

 Copyright © 1995 Washington College of Law of The American University; Peter G. McCabe

 

Table of Contents

 

Introduction ...............................................................................................................................1656 

I. Historical Background ........................................................................................................1658

II. Current Rulemaking Procedures ..........................................................................................1664

 A. Committee Membership .................................................................................................1664 

 B. Publication of Procedures ...............................................................................................1666 

 C. Soliciting Comments from the Public ...............................................................................1667 

 D. Documentation of Changes .............................................................................................1669 

 E. Public Hearings ...............................................................................................................1670 

 F. Open Meetings ...............................................................................................................1670 

 G. Open Records ................................................................................................................1671 

 H. Length of the Process .....................................................................................................1671 

 1. Initial consideration by the advisory committee ..............................................................1672 

 2. Publication and public comment ....................................................................................1672 

 3. Consideration of the public comments and final approval by 

 the advisory committee ......................................................................................................1672 

 4. Approval by the standing committee .............................................................................1673 

 5. Judicial Conference approval ........................................................................................1673 

 6. Supreme Court approval ..............................................................................................1673 

 7. Congressional review ...................................................................................................1673 

 I. Supreme Court Review ....................................................................................................1674 

III. Continuing Renewal Efforts ..................................................................................................1675 

 A. Long Range Planning ......................................................................................................1675 

 B. Greater Participation by the Bar ......................................................................................1676 

 C. Frequency of Rule Changes ............................................................................................1678 

 D. Content, Organization, and Style of the Rules ..................................................................1681 

 E. The Judiciary and Congress .............................................................................................1682 

 F. National Uniformity and Local Rules ................................................................................1687 

Conclusion ..................................................................................................................................1691 

 

* This article (44 Am. U. L. Rev. 1655) has been posted with permission from West Group

and The American University Law Review. For American University’s Law Review copyright

policy, please see http://wcl.american.edu/journal/lawrev/copyright.cfm/ 
2

INTRODUCTION

The federal rules of practice and procedure regulate litigation in the federal courts

and are designed "to promote simplicity in procedure, fairness in administration, the

just determination of litigation, and the elimination of unjustifiable expense and

delay." [FN1] The Federal Rules of Civil Procedure, in particular, have been

described as "among the most significant accomplishments of American

jurisprudence," [FN2] setting the standard "against which all other systems of

procedure must be judged." [FN3] The success of the civil rules led to the

establishment of federal rules for criminal, appellate, and bankruptcy procedure, as

 well as federal rules of evidence.

The process by which the federal rules [FN4] are promulgated, although subject to

periodic criticism, has been praised as "perhaps the most thoroughly open,

deliberative, and exacting process in the nation for developing substantively neutral

rules." [FN5] The essence of the federal rulemaking process has remained

constant for the past sixty years. Its basic features include: (1) the drafting of new

rules and rule amendments by prestigious advisory committees composed of

judges, lawyers, and law professors; (2) circulation of the committees' drafts to the

bench, bar, and public for comment; (3) fresh consideration of *1657 the proposed

changes by the advisory committees, after taking into account the comments of the

bench, bar, and public; (4) careful review of the advisory committees' proposals;

(5) promulgation of the proposals by the Supreme Court; and (6) "enactment" of

the proposals into law following the expiration of a statutory period in which

Congress is given an opportunity to reject, modify, or defer them.

At various points over the last sixty years both Congress and the judiciary have

acted to reaffirm and renew the rulemaking process, with the objective of making it

more effective and more open. Significant organizational and procedural

improvements have been made as a result both of self-evaluation efforts by the

judiciary and criticisms from the bar and Congress. One recommendation in the

Proposed Long Range Plan for the Federal Courts, [FN6] which was recently

approved by the Judicial Conference of the United States, [FN7] reaffirms the

judiciary's commitment to periodic, comprehensive reexaminations of the

rulemaking process. [FN8] The Plan recommends that: 

C rules of practice, procedure, and evidence should be developed exclusively in

accordance with the time-tested and orderly process established by the Rules

Enabling Act; 

C the national rules should strive for greater uniformity of practice and procedure in

the federal courts, but individual courts should have some limited rulemaking

authority to account for differing local circumstances and to experiment with

innovative procedures; and 

C the Judicial Conference and the courts should seek significant participation in rulemaking by the
3

interested public and representatives of the bar, including federal and state judges. [FN9]

Part I of this Article provides a brief history of the federal rulemaking process. 

Part II describes the current rulemaking procedures, focusing on how they have been

changed to address past criticisms. Part III discusses future initiatives in the

rulemaking process.

*1658 

I. HISTORICAL BACKGROUND

Although there has been debate among scholars over the authority of the federal

judiciary, vis-a-vis Congress, to promulgate procedural rules for the federal courts,

[FN10] the matter was resolved by the Rules Enabling Act of 1934. [FN11] By

virtue of the Act, Congress delegated almost all rulemaking authority to the

judiciary, reserving to itself the post facto right to reject, enact, amend, or defer

any of the rules. The legislation delegated to the Supreme Court the explicit power

to prescribe rules for the district courts governing practice and procedure in civil

actions. [FN12] 

In 1935, the Supreme Court appointed a blue ribbon advisory 

committee to draft the first Federal Rules of Civil Procedure. [FN13] Over the next 

two years, the advisory committee widely circulated proposed drafts to the bench and bar for

comment, and it made numerous changes to the drafts thanks to extensive

assistance from the legal profession. [FN14] After the Supreme Court adopted the

rules and Congress *1659 did not act to modify them, the civil rules took effect in

September 1938. [FN15]

In 1940, Congress authorized the Supreme Court to promulgate rules governing

criminal cases in the district courts. [FN16] The Supreme Court followed the same

procedure it had used to prepare the civil rules. A distinguished advisory

committee prepared and circulated draft rule proposals, received comments from

the bench and bar, and submitted the proposed rules to the Court. [FN17] The

Federal Rules of Criminal Procedure took effect, by operation of law, without

congressional action in March 1946. [FN18]

In 1958, Congress enacted legislation transferring the major responsibility for the

rulemaking function from the Supreme Court to the Judicial Conference of the

United States. [FN19] The Conference was mandated to "carry on a continuous

study of the operation and effect of the [federal] rules" and to recommend

appropriate amendments in the rules. [FN20] The Supreme Court retained its

statutory authority to promulgate the rules, but it would henceforth do so by acting

on recommendations made by the Judicial Conference. [FN21]

Following enactment of the 1958 legislation, the Judicial Conference established a

Standing Committee on Rules of Practice and Procedure and five advisory

committees, to amend or create the civil, criminal, bankruptcy, appellate, and
4

admiralty rules. [FN22] The Standing Committee's mission was to supervise the

rulemaking process for the Conference and to coordinate and approve the work of

the advisory committees. [FN23]

The Admiralty Rules were merged into the Federal Rules of Civil Procedure in

1966. [FN24] The Federal Rules of Appellate Procedure took effect in 1968,

[FN25] the federal Bankruptcy Rules became law in1973, *1660 [ FN26] and

the rules governing post-conviction collateral remedies for prisoners took effect in

1977. [FN27] The separate rules for misdemeanor and petty offense cases before

magistrate judges were merged into the Federal Rules of Criminal Procedure in

1990. [FN28]

New proposed rules and amendments to the rules approved by the Supreme

Court were accepted by Congress without change for approximately thirty-five years following

promulgation of the Federal Rules of Civil Procedure. [FN29] The

picture changed sharply in the 1970s, however, as a result of controversy surrounding the Federal

Rules of Evidence.

Chief Justice Earl Warren appointed an advisory committee to draft rules of

evidence in 1965, and the Supreme Court transmitted the rules to Congress in

1972. [FN30] Immediate concern was expressed that the judiciary had exceeded

its statutory authority on the grounds that: (1) the Rules Enabling Act, which

authorized the Supreme Court to promulgate rules of "practice and procedure,"

was not broad enough to govern the promulgation of rules of evidence; and (2) the

new rules had impermissibly overstepped the boundary between procedure and

substance, particularly in attempting to supersede evidentiary privileges established

by state law. [FN31]

Congress deferred the proposed rules indefinitely and held extensive hearings on

them. Eventually, the Federal Rules of Evidence were revised by Congress and

enacted into law by affirmative legislation. [FN32] The principal legislative revision

was to eliminate the proposed federal evidentiary privileges, thereby continuing to

leave the matter to federal common law and applicable state law. [FN33]

Congress also amended the Rules Enabling Act to give the judiciary explicit

authority to amend the Federal Rules of Evidence. [FN34] It provided, *1661

however, that no rule establishing, abolishing, or modifying a privilege has any

force unless approved by an act of Congress. [FN35]

Following enactment of the Federal Rules of Evidence, Congress periodically

intervened to delay, reject, or modify proposed federal rules. [FN36] The

controversy over the evidence rules also evoked criticism directed at the

procedures under which the new rules had been promulgated. Generally, the

complaints were that the process was not sufficiently "open" and had not allowed

for adequate public input. [FN37] Accordingly, one member of the House

Judiciary Committee suggested that the time was ripe to reexamine the rulemaking

process and possibly amend the Rules Enabling Act. [FN38]
5

Chief Justice Warren E. Burger, in his 1979 The State of the Federal Judiciary

report, took note of the controversy and suggested that it was time to take a "fresh

look" at the entire rulemaking process. [FN39] He requested that the Judicial

Conference and the Federal Judicial Center, the judiciary's primary research arm,

study the matter in light of the experience under the Rules Enabling Act. [FN40] 

In response, the Federal Judicial Center prepared a report to assist the Standing

Committee on Rules of Practice and Procedure. [FN41] The report analyzed the

strengths and weaknesses of the process and focused on those aspects of the

process that had been singled out for criticisms and change. [FN42]

The Standing Committee conducted a comprehensive review of rulemaking

procedures and instituted a number of changes. The innovations included making

the records considered by the rules committees available to the public,

documenting all changes made by the committees at the various stages of the process, and conducting

public hearings on proposed amendments. The

Conference also committed its procedures to writing and published them for

the benefit of the bench and bar. [FN43]

In 1983, the House Judiciary Subcommittee on Courts, Civil Liberties, and the

Administration of Justice initiated a comprehensive review of the rulemaking

process. [FN44] The House Subcommittee conducted hearings in both the 98th

and 99th Congresses, during which it invited comment on the rulemaking process

and engaged in a productive dialogue with the Judicial Conference and the

Standing Committee chairman. [FN45]

Following five years of study, hearings, and dialogue, the House subcommittee

marked up a bill to codify formally some of the rulemaking procedures already

being used by the Judicial Conference and also to require that all meetings of rules

committees be open to the public and that minutes of the meetings be prepared.

[FN46] The legislation ratified the Judicial Conference's authority to appoint a

standing committee and appropriate advisory committees. [FN47]

The House version of the legislation specified "that each rules committee consist of

'a balanced cross section of bench and bar, and trial and appellate judges."'

[FN48] The judiciary endorsed this provision. [FN49] As eventually enacted,

however, the legislation did not contain the requirement of a balanced cross

section, merely providing for the committees to consist of trial judges, appellate

judges, and members of the bar. [FN50]

One of the major objectives of the House sponsors of the legislation was to

eliminate the "supersession" clause of the 1934 Act, providing that "all laws in

conflict with . . . rules [promulgated under the Act] shall be of no further force or

effect after such rules have taken effect." [FN51] It was asserted that the clause

was unnecessary because its original purpose (to override various procedural rules

scattered throughout the United States Code) had passed. [FN52] More

importantly, it was argued that the provision was of questionable constitutional
6

validity in light of INS v. Chadha, [FN53] because the Rules Enabling Act

authorizes the repeal of statutes without conforming to the requirements of Article

I. [FN54] The Senate, however, did not accept the House provision, [FN55] and

the Rules Enabling Act amendments were enacted in 1988 without deleting the

supersession clause. [FN56]

The 1988 amendments also attempted to stem the proliferation of local rules of

courts and to provide for more public participation in the adoption of local rules.

The House subcommittee expressed particular concern that some local court rules

were inconsistent with federal rules and statutes. [FN57] It noted, however, that

the Judicial Conference had taken steps to deal with the problems of local rules by:

(1) establishing a Local Rules Project to review all local rules, and (2) amending

the national rules [FN58] to require that local court rules be prescribed only after

giving appropriate public notice and an opportunity to comment. [FN59]

Congress codified these local rule requirements in the Rules Enabling Act. [FN60]

It also required each court, other than the Supreme Court, to appoint an advisory

committee to study the court's rules of practice and internal operating procedures

and make recommendations concerning them. [FN61] The legislation gave the

judicial councils of the circuits authority to modify or abrogate any district court

local rules and the Judicial Conference the authority to modify or abrogate the local

rules of any court of appeals or other federal court except the Supreme Court.

[FN62]

*1664 

Ironically, while Congress attempted to promote national uniformity and

limit the proliferation of local court rules in 1988, it took an entirely different

approach just two years later in enacting the Civil Justice Reform Act of 1990.

[FN63] That legislation requires each district court to implement its own,

individualized civil justice expense and delay reduction plan. [FN64]

 II. CURRENT RULEMAKING PROCEDURES

Although many changes have been made in operating procedures, the rulemaking

structure today is essentially the same as that established by the Judicial

Conference following the 1958 legislation assigning it the central role in drafting

and monitoring the federal rules. [FN65] The Conference's Standing Committee

supervises the rulemaking process and recommends to the Conference such

changes to the rules as it believes are necessary to maintain consistency and

promote the interest of justice. [FN66]

The Standing Committee is assisted by five advisory committees, each of which is

responsible for one set of federal rules, i.e., civil, criminal, appellate, bankruptcy,

or evidence. [FN67] The advisory committees conduct ongoing studies of the

operation of their respective rules, prepare appropriate amendments and new
7

rules, draft explanatory committee notes, conduct hearings, and submit proposed

changes through the Standing Committee to the Judicial Conference.

A. Committee Membership

The committees are composed of federal judges, practicing lawyers, law

professors, state chief justices, and representatives of the Department of Justice.

Each committee has a Reporter, a law professor with demonstrated *1665

expertise in the committee's subject area, who is responsible for coordinating the

committee's agenda and drafting appropriate amendments to the rules and

explanatory committee notes. The Administrative Office of the United States

Courts, through the Office of the Secretary and the Rules Committee Support

Office, coordinates the operational aspects of the rules process, provides

administrative and legal support to the committees, and maintains the committees'

records.

During congressional hearings in the 1970s and 1980s, it was argued that the

rulemaking committees were not broadly based and did not adequately reflect the

diversity of the legal community. [FN68] In addition, there has been criticism that

there are not enough practicing lawyers on the committees. [FN69] The present

composition of the committees is as follows:

 

 Committees 

 App.... Bankr. Civil Crim. Evid. Standing 

Attorneys and Professors

Private Practice Att'ys 3 ..... 5 4 3 3 3 

Government Att'ys 1 ..... 1 1 1 1 1 

Law Professors - ..... 1 1 1 2 2 

Federal Judges 

Circuit Judges 4 ..... 1 3 1 2 3 

District Judges - ..... 2 3 5 2 5 

Other Judges - ..... 5 - 1 1 - 

Other 

State Chief Justice 1 ..... - 1 1 1 1 

 Total 9 ..... 15 13 13 12 15 

 

The advisory committee that drafted the original Federal Rules of Civil Procedure

was comprised entirely of lawyers and professors. Judges were added to the

committees shortly thereafter and eventually became *1666 a large majority on

each committee. In the past few years, however, the number of attorneys vis-a-vis
8

judges on the committees has been increasing. Federal judges presently are a

minority on three of the six committees, and they constitute about fifty percent of

the membership of the committees as a whole.

The committees' membership is geographically balanced and increasingly

represents different perspectives within the legal profession, including members of

large and small law firms, government attorneys, "public interest" lawyers, teachers,

federal defenders, and criminal defense attorneys. Diversity in membership has

increased, but the primary criteria for membership remain professional ability and

experience.

Commentators suggested that there be greater turnover in the membership of the

committees. [FN70] This objective has been achieved. At present, members of the

rules committees, as with almost all Judicial Conference committees, serve for

terms of three years. [FN71] Only one reappointment is allowed. [FN72] Thus, a

member may serve on a committee for a maximum of six years. Chairs of the

committees are normally appointed for just one three- year term. [FN73] The

current chair of the Standing Committee is District Judge Alicemarie H. Stotler of

the Central District of California, who was appointed by the Chief Justice in 1993.

Several of the committees invite persons with important and specialized knowledge

to assist them as a resource at committee meetings. The appellate and bankruptcy

committees, for example, have included a clerk of court in their deliberations for

many years. The clerks are extremely helpful in identifying the practical impact of

the rules on administrative operations and on case management. In addition, the

bankruptcy committee invites the director of the U.S. trustee program to

participate in committee meetings.

*1667

B. Publication of Procedures

During the early 1980s, the Judicial Conference was criticized for not having

published its rulemaking procedures. [FN74] In response, in 1983 the Standing

Committee developed a written Statement of Procedures for the Conduct of

Business by the Judicial Conference Committees on Rules of Practice and

Procedure, which incorporated long-standing practices of the rules committees and

adopted many suggested procedural improvements. [FN75] The publication

requirement was codified in the 1988 amendments to the Rules Enabling Act.

[FN76]

The rulemaking procedures are now published as an integral part of the public

announcement of all proposed rule amendments when they are distributed to the

bench and bar. A new easy-to-read pamphlet, The Federal Rules of Practice and

Procedure: A Summary for Bench and Bar, [FN77] is also included with all

distributions to the public and is made available to bar groups and others as a
8

means of fostering knowledge about the rulemaking process and stimulating

comments on the rules.

C. Soliciting Comments from the Public

A number of people complained that inadequate advance notice had been

provided of proposed amendments to the rules, thereby depriving the public of a

meaningful opportunity to shape the rules before promulgation. [FN78] In addition,

it was said that the mailing list for distribution of proposed amendments was too

limited. [FN79] Accordingly, proposals for amendments in the rules did not reach

a sufficiently broad cross section of the legal profession.

Today, extensive efforts are made to reach all segments of the bench and bar, as

well as organizations and individuals likely to be interested in or affected by

proposed changes to the rules. The *1668 Administrative Office mails all rules

proposals to about forty major legal publishing firms, and they are reprinted in

advance sheets. They are also mailed to more than 10,000 persons and

organizations on its rules mailing list, including:

C federal judges and other federal court officers, 

C U.S. Attorneys and other Department of Justice officials, 

C other federal government agencies and officials, 

C federal defenders, 

C state chief justices, 

C state attorneys general, 

C legal publications, 

C law schools, 

C bar associations, and 

C any lawyer, individual, or organization who requests distribution.

In addition to circulating the full text of all proposed rule amendments and advisory

committee notes, the Administrative Office now prepares "user- friendly"

pamphlets summarizing the proposed amendments and highlighting the dates of

scheduled public hearings and the cut off date for written comments. The

pamphlets are distributed together with the full text of the amendments and

advisory committee notes. The bench and bar are informed in all publications that

further information and materials may be obtained from the Secretary and the

Rules Committee Support Office, whose address and telephone number are

provided.

To supplement the general mailings, the advisory committees have sought to obtain

important input through special mailings to targeted segments of the legal

profession and interested organizations. In September 1994, for example, the

Advisory Committee on the Rules of Evidence solicited public comment on

statutory changes to Federal Rules of Evidence 413, 414, and 415, dealing with
10

evidence of prior, similar acts in cases involving sexual assault or child molestation.

[FN80] The mailing was sent to 900 professors of evidence, 40 women's rights

organizations, and 1000 other interested individuals and organizations.

The goal of the committees is to stimulate greater participation by the bar in the

rulemaking process by actively encouraging individuals and organizations to

comment on specific amendments to the rules and to identify problems in the

operation and effect of the rules generally. *1669 The public comments are

extraordinarily helpful and are taken very seriously by the committees. They

regularly result in improvements in the amendments, and have led to the withdrawal

of proposed amendments. [FN81]

In addition to increasing the amount, readability, and distribution of printed

information on the rules, the advisory committees seek input from the bar outside

the context of specific pending amendments. The Advisory Committee on Civil

Rules has invited bar organizations to send representatives to attend its meetings,

and it has, in appropriate cases, solicited the views of lawyers and professors on

preliminary proposals before they were drafted.

The advisory committees have also convened special meetings with lawyers and

nonlawyers to assess the potential need for rule changes to certain discrete areas

of practice. The civil advisory committee, for example, has invited knowledgeable,

experienced lawyers to meet with it to explore the problems of class actions and

mass tort litigation. The bankruptcy committee has met with chapter 13 lawyers

and trustees to examine the impact of the bankruptcy rules on chapter 13 cases. It

has also invited publishers to provide input on the bankruptcy forms.

D. Documentation of Changes

People had voiced complaints that the deliberations of the committees were not

adequately documented and that it was difficult to discern the rationale for

proposed changes to the rules and to discover the minority views of members.

[FN82] Additionally, some expressed concern that proposed amendments were

materially changed after they had been circulated for comment and that no

opportunity for further comment had been provided. [FN83]

Under current procedures, each action taken by a committee with regard to a

proposed amendment is documented and included in the public record. The

advisory committees are required to submit a separate "Gap" report, summarizing

the public comments and explaining any changes made following publication. The

Standing Committee submits a report to the Judicial Conference setting forth the

*1670 reasons for all proposed amendments and identifying any changes it made

in the recommendations of the advisory committee. After the Conference approves

amendments, the Administrative Office transmits to the Supreme Court the text of

the proposed amendments, the advisory committee notes, pertinent portions from
11

the advisory committee and Standing Committee reports, and a special report

identifying any controversial proposals and explaining the source and nature of the

controversy.

If an advisory committee or the Standing Committee makes any "substantial"

change in a rule after publication, it normally provides an additional period for

public notice and comment. Changes more extensive than the original publication

are republished. On the other hand, if a change is similar to, but less extensive than

the original publication, it will not generally be republished. Similarly, purely

technical changes and corrections are not normally published for comment.

E. Public Hearings

During the course of the controversy over adoption of the Federal Rules of

Evidence in the early 1970s, there were complaints that the judiciary had not held

public hearings on the proposed rules. [FN84] Written statements were seen as an

inadequate substitute for the opportunity of the public to appear in person and

engage in a face-to-face dialogue with decision makers. Today, public hearings are

scheduled on all proposed changes to the rules. Where the subject matter of the

changes is controversial, such as the 1992 amendments to Rule 26 of the Federal

Rules of Civil Procedure, large numbers of individuals and organizations will ask to

testify. On the other hand, many hearings attract few or no requests to testify and

are canceled for lack of public interest.

F. Open Meetings

There had been criticism that the meetings of the Standing Committee and the

advisory committees were not open to the public. [FN85] Until enactment of the

1988 amendments to the Rules Enabling Act, meetings of the Standing Committee

and the advisory committees *1671 had generally been closed to the public. The

1988 amendments to the Rules Enabling Act require open meetings, but allow a

committee to go into executive session for cause. [FN86]

All meetings of the rules committees are open to the public and are announced in

advance in the Federal Register and leading legal publications. For the most part,

though, public attendance is light, except when committees address controversial

items. [FN87]

G. Open Records

There had been complaints that committee agendas and materials relied upon in

promulgating rules were not made available to the public. [FN88] Filed comments

were made available only to persons with a "legitimate purpose" in seeing them,
12

and minutes, reporters' notes, memoranda, and drafts were not made public until

1980. [FN89]

Today, all records are open and readily available from the Administrative Office,

including minutes of committee meetings, suggestions and comments submitted by

individuals and organizations, statements of witnesses, transcripts of public

hearings, and memoranda prepared by the reporters. In addition, the reports of the

Standing Committee to the Judicial Conference and the minutes of Standing

Committee and advisory committee meetings are available on-line through

computer-assisted legal research.

All records more than two years old -- dating back to 1935 -- have been placed

on microfiche and indexed. They are available for review either at the

Administrative Office or at a government repository and may be purchased from a

commercial service. Planning has begun on developing an electronic docket of all

records and expanding the availability of materials electronically.

H. Length of the Process

The rulemaking process demands exacting and meticulous care in drafting

proposed rule changes. It is time-consuming and involves a minimum of seven

stages of formal input and review. From beginning to end, it usually takes two to

three years for a suggestion to be enacted as a rule, fourteen months of which is

directly attributable to *1672 the built-in statutory period for review by the

Supreme Court and Congress. This seven-step process is discussed below.

1. Initial consideration by the advisory committee

Proposed changes to the rules are initiated in writing by lawyers, judges, clerks of

court, law professors, government agencies, or other individuals and organizations.

The Secretary acknowledges each suggestion and distributes it to the appropriate

advisory committee, whose Reporter analyzes it and makes appropriate

recommendations for consideration by the committee. The suggestions and the

Reporter's recommendations are placed on the committee's agenda and normally

discussed at its next meeting. The Secretary now advises each person making a

suggestion of its eventual disposition. When an advisory committee decides that a

particular change in the rules has merit, it normally asks its Reporter to prepare a

draft amendment to the rules and an explanatory committee note.

2. Publication and public comment

Once an advisory committee has voted initially to pursue a new rule or an

amendment to the rules, it must obtain the approval of the Standing Committee, or
13

its chair, to publish the proposal for public comment. In seeking publication, the

advisory committee must explain to the Standing Committee the reasons for its

proposal, including any minority or separate views.

Once publication is approved, the Secretary arranges for printing and wide

distribution of the proposed amendment to the bench and bar, to publishers, and to

the general public. The public is normally given six months to comment on the

proposal. During the six-month comment period, one or more public hearings on

the proposed changes are scheduled.

3. Consideration of the public comments and final approval by the advisory

committee

At the end of the public comment period, the Reporter is required to prepare a

summary of the written comments received from the public and the testimony

presented at the hearings. The advisory committee then takes a fresh look at the

proposed rule changes in light of all the written comments and testimony.

If the advisory committee decides to proceed in final form, it submits the proposed

rule or amendment to the Standing Committee for approval. Each proposal must

be accompanied by a separate report summarizing the comments received from

the public and explaining *1673 any changes made by the advisory committee

following the original publication. [FN90] The advisory committee's report must

also include minority views of any members who wish to have their separate views

recorded. If, on the other hand, the advisory committee decides to make any

substantial change in its proposal, it will republish it for further public comment.

4. Approval by the standing committee

The Standing Committee considers the final recommendations of the advisory

committee and may accept, reject, or modify them. If the Standing Committee

approves a proposed rule change, it will transmit the change to the Judicial

Conference with a recommendation for approval, accompanied by the advisory

committee's reports and its own report explaining any changes it made. If the

Standing Committee makes a modification that constitutes a substantial change

from the recommendation made by the advisory committee, the proposal will

normally be returned to the advisory committee with appropriate instructions.

5. Judicial Conference approval

The Judicial Conference normally considers proposed amendments to the rules at

its September session each year. If it approves the amendments, they are

transmitted to the Supreme Court.
14

6. Supreme Court approval

The Supreme Court has seven months, from the time the proposed amendments

are received from the Conference until May 1, to review them, prescribe them,

and transmit them to Congress. [FN91]

7. Congressional review

Congress has a statutory period of at least seven months to act on any new rules

or amendments prescribed by the Supreme Court. If Congress does not enact

positive legislation to reject, modify, or defer the rules or amendments, they take

effect as a matter of law on December 1. [FN92]

*1674 

The lengthy process may be expedited when there is an urgent need to

consider an amendment to the rules. This normally occurs when Congress has

requested prompt consideration of a proposal or when legislation has been

introduced in Congress to amend the rules directly by statute. The fourteen-month

delay for review by the Supreme Court and Congress, however, is established by

statute and cannot be reduced by the Judiciary. [FN93]

I. Supreme Court Review

It has been proposed that the Supreme Court be removed from the rulemaking

process and that the rules be promulgated by the Judicial Conference. [FN94] The

original version of the legislation that became the Rules Enabling Act amendments

of 1988, for example, would have removed the Supreme Court from the

rulemaking process. [FN95] The provision, however, was withdrawn after Chief

Justice Burger informed the chairman of the House Judiciary subcommittee that

"[t]he Justices conclude that it would be better to keep the ultimate authority of

passing on rulemaking within the Court as it is now, but to allow the Court to defer

to the decision of the Judicial Conference." [FN96]

On most occasions, the Court has deferred to the Judicial Conference and has

prescribed without change proposed rules amendments submitted by the Judicial

Conference. [FN97] Nevertheless, the Court has accorded serious, independent

review to proposed amendments in the1990s, *1675 deferring a proposed

amendment to Rule 4 of the Federal Rules of Civil Procedure in 1991, [FN98]

approving amendments to Rule 11 of the Federal Rules of Civil Procedure and five

civil discovery rules [FN99] over three dissents in 1993, [FN100] and withholding

part of the amendments to Rule 412 of the Federal Rules of Civil Procedure in

1994. [FN101] The Court's recent orders transmitting rules changes to Congress

have specified that: "While the Court is satisfied that the required procedures have
15

been observed, this transmittal does not necessarily indicate that the Court itself

would have proposed these amendments in the form submitted." [FN102]

Although the length of the rulemaking process would be shortened by eliminating

the role of the Supreme Court, the Court's enormous prestige clearly contributes to

the legitimacy and credibility of the process.

 III. CONTINUINGRENEWAL EFFORTS

Most of the criticisms of the rulemaking process over the past twenty years have

been addressed by procedural improvements made by the Judicial Conference and

the 1988 amendments to the Rules Enabling Act. Nevertheless, the rules

committees are continuing to examine other important procedural issues that have

not been fully resolved.

 A. Long Range Planning

The judiciary established a permanent long range planning process designed to

identify the mission and future directions of the federal courts. The Proposed Long

Range Plan for the Federal Courts ( Plan) is the first major product of this planning

process. With regard to the federal rules, the Plan encourages significant

participation by the bar in *1676 the rulemaking process, exclusive adherence to

the Rules Enabling Act process, and greater uniformity in federal practice and

procedure. [FN103]

As part of the long range planning process, the Standing Committee on Rules of

Practice and Procedure has appointed a long range planning subcommittee to

conduct a study of the rulemaking process and make recommendations for

procedural improvements. In addition, the advisory committees have initiated their

own long range planning efforts. The Advisory Committee on Bankruptcy Rules,

for example, has a standing subcommittee on automation that has been active in

evaluating the impact of technology and in considering changes to the bankruptcy

rules to take advantage of the benefits of automation. [FN104]

Likewise, the bankruptcy, appellate, and civil advisory committees have proposed

and circulated for public comment proposed rule amendments that would allow

individual courts to permit attorneys to file, sign, and verify documents with the

court electronically. [FN105] If approved through the Rules Enabling Act process,

the amendments would take effect on December 1, 1996. [FN106]

 B. Greater Participation by the Bar

Despite substantial efforts to persuade attorneys to take the time to suggest

improvements in the rules and comment on proposed amendments, the bar is
16

considerably less active than the committees would like. A handful of bar

organizations and individuals respond regularly to requests for public comments by

providing comprehensive, balanced analyses of proposed rules amendments. But

most judges, lawyers, and professors simply do not respond to requests for

comments, and those who do, generally oppose specific amendments on *1677 an

ad hoc basis. [FN107] Accordingly, the public responses tend to be moderate in

number and not necessarily representative of the bench and bar as a whole.

The Proposed Long Range Plan for the Federal Courts encourages an active

partnership with the bar in the rulemaking process, both through membership of

practicing attorneys on the rulemaking committees and greater participation by

attorneys and bar associations in commenting on proposed amendments to the

rules. [FN108] The Plan asks the rules committees to continue their outreach

efforts in stimulating lawyers and bar associations to provide practical advice to the

committees. [FN109]

As one of his many initiatives to improve judicial administration and service,

Administrative Office Director L. Ralph Mecham established a Rules Committee

Support Office in 1992 to provide legal and operational support to the Secretary

and the rules committees and to provide a higher level of information services to

the bar. To stimulate additional responses on rules issues by bar associations,

individual lawyers, and academia, the mailing list for the rules is being expanded

and rejuvenated. Every six months an additional 200 attorneys and 100 law

professors selected at random will be added until an additional 2500 names are

added. If no comments are received from addressees for three years, their names

will be removed from the list and replaced with others.

The Standing Committee has also requested that the bar associations of each of

the states designate an attorney as a point of contact to solicit and coordinate bar

comments on proposed amendments. It is anticipated that the bar associations will

encourage their members to discuss the rules and provide thoughtful and

practical input *1678 to the advisory committees. It is also hoped that

representatives of the bar will attend committee meetings and hearings.

In an effort to assess the practical operation of the rules, the Advisory Committee

on Civil Rules scheduled two conferences in 1995 with members of the bar and

academia to discuss class actions and the effectiveness of Rule 23 of the Federal

Rules of Civil Procedure. In addition, members of the advisory committee will

participate with attorneys and law professors in a conference to consider the

strengths and weaknesses of the civil rules generally.

 C. Frequency of Rule Changes

The 1958 statute assigning rulemaking responsibilities to the Judicial Conference

requires the Conference to conduct a "continuous study of the operation and effect
17

of the general rules of practice and procedure." [FN110] Contemporary

commentators suggested that the rules committees should have ample staff, should

engage in grassroots surveys, and should conduct hearings, regional meetings, and

discussions with the bar to monitor the rules in practice. [FN111] More recently,

Justice Scalia stated that it is essential to have constant reform of the federal rules

to correct emerging problems. [FN112]

The requirement to conduct a continuous study of the operation and effect of the

rules, however, does not compel the conclusion that amendments should be

frequent. Nor does it imply that all perceived problems with the rules and all

conflicts in case law should be rectified. To the contrary, one of the most persistent

criticisms of the rules process is that there are simply too many amendments.

[FN113]

Some amendments have been criticized as mere "tinkering" with the rules.

[FN114] And it has been suggested that there should be no change*1679 in a rule

"unless there is substantial need for the change." [FN115] One critic even has

argued for a moratorium on procedural law reform. [FN116]

Too many minor changes to the rules can lead to uncertainty and confusion in the

bench and bar. [FN117] Constant changes, moreover, tend to undermine the

stability and prestige of the rules as a whole. The challenge, therefore, is to weigh

the benefits of a proposed improvement in the rules against the inherent cost of

introducing change and possible uncertainty.

Some rule amendments, even though minor, are necessary to implement recent

legislation, [FN118] to conform to modern language usage, [FN119] to correct

improper statutory cross-references, [FN120] and to coordinate with pending

congressional action. [FN121] As a general rule, however, there is now a

reluctance to make changes to the rules unless they can be shown to be necessary

to correct a serious problem in practice. Although many suggestions for

improvements in the rules are received from the bench and bar to clarify or

reconcile case law among the circuits, the advisory committees have generally

opted to allow case law interpreting the rules take its course. [FN122]

*1680 

In September 1994, for example, the Advisory Committee on the Rules of

Evidence published its tentative decisions not to amend twenty- five evidence rules.

[FN123] The committee announced its philosophy that an amendment to a rule

should not be undertaken absent a showing either that it is not working well in

practice or that it embodies an erroneous policy decision. [FN124] The advisory

committee pointed out that any amendment in the rules of evidence "will create

new uncertainties as to interpretation and unexpected problems in practical

application." [FN125]

To avoid the appearance of piecemeal changes, the advisory committees have

begun to use the device of deferring and "batching" miscellaneous rule changes into
18

a single package of amendments. One possible option for the advisory committees

to consider in the future is to prescribe a set schedule for submitting non-urgent

rules changes -- perhaps every three to five years. This approach, although

appealing, is complicated by unpredictable congressional activity that increasingly

tends to interrupt any schedules or planning efforts. The 103d Congress, for

example, passed a comprehensive bankruptcy reform law that will require rules

changes, [FN126] and the 104th Congress, as part of the Republican "Contract

with America," is considering a number of changes both in civil litigation and

criminal law. [FN127]

It has also been recommended widely that rules changes be predicated on a

sounder empirical basis. [FN128] To that end, the advisory committees have been

increasing their requests for assistance from the Federal Judicial Center to conduct

research on litigation practices and the impact of the rules. The Federal Judicial

Center conducted a major study of Rule 11 of the Federal Rules of Civil

Procedure before the Advisory Committee on Civil Rules proceeded with the

1993 amendments to that rule. [FN129] The civil advisory committee *1681 also

asked the Federal Judicial Center to conduct studies on the use and operation of

protective orders under Rule 26(c), offers of settlement under Rule 68, consensual

settlement of class actions under Rule 23, and the effect of mandatory disclosure

under the 1993 amendments to Rule 26. The Advisory Committee on Criminal

Rules considered the results of the Federal Judicial Center's study on cameras in

the courtroom before approving amendments to Rule 53. [FN130]

 D. Content, Organization, and Style of the Rules

Simplicity and uniformity were central goals of the drafters of the federal rules.

[FN131] There are complaints, however, that the rules are no longer simple and

uniform, but have become cumbersome, lengthy, and unpredictable. [FN132]

Commentators suggest that fundamental changes are needed and that it is time to

take a fresh look at the rules. [FN133] It has also been suggested that it is time to

reconsider the trans-substantive character of the rules, so that different categories

of cases could be governed by different rules. [FN134] Obviously, such sweeping

changes would take considerable time to effectuate and would require major input

from the bar and academia, empirical research, substantial committee

deliberations, and public hearings. The civil and bankruptcy advisory committees

have, as part of their long range planning efforts, begun *1682 to think about

whether changes of such magnitude will eventually be necessary or desirable.

Apart from changes to substance, there are opportunities to improve the style,

consistency, and readability of the rules. Under the leadership of Judge Robert E.

Keeton, former chairman of the Standing Committee, efforts have been initiated to

redraft the body of rules in clear and concise English -- without substantive change
19

-- following the best conventions of modern statutory revision and the advice of

legal writing teachers. There are no present plans to adopt the revised version of

the rules, but at an appropriate point in the future -- perhaps integrated with a

major revision of the rules -- the "re-styled" language could be substituted for the

present language.

The Standing Committee is now assisted by a legal writing consultant and a style

subcommittee, and it will publish a guide to clear and simple rule drafting. [FN135]

The consultant works with the advisory committees and their reporters to promote

clear and consistent language in proposed rules amendments.

As part of its long range planning efforts, the committees could also consider

eventual integration of all five sets of federal rules into one. The result, for example,

might be the consolidation of similar provisions that now appear separately in each

of the rules, such as the provisions dealing with computation of time, [FN136]

courts' and clerks' offices, [FN137] and local rules. [FN138]

 E. The Judiciary and Congress

The success of the rulemaking process relies on a delicate balance of authority and

continuing cooperation between the judicial and legislative branches of the

government. The Rules Enabling Act of 1934, as reaffirmed by Congress in 1988,

establishes a statutory structure under which the judiciary prescribes rules of

procedure, practice, and evidence for the federal courts, after giving the bench,

bar, and public a generous opportunity for input. Congress then retains the ultimate

authority to accept, reject, amend, or defer proposed amendments to the rules.

The process works exceedingly well when the procedures by which rules are

crafted are credible and when mutual respect prevails between the two branches.

*1683 

The credibility of the rulemaking process was seriously questioned during

the 1970s' controversy over the Federal Rules of Evidence. Complaints were

made that proceedings before the rules committees had been closed and that

changes had been made in the proposals without public notice or input. Complaints

about the procedures, combined with concerns that the rulemakers had exceeded

their authority and abridged substantive rights, led opponents to petition Congress

to defer or reject the rules. [FN139]

The credibility of rulemaking procedures has been enhanced by its current

openness and accessibility. [FN140] When proposed changes to the rules are now

submitted to Congress, an extensive public record has been developed to support

the changes, including careful consideration by expert advisory committees, public

comments, public hearings, and four levels of review. Members of Congress can

be assured that the changes received thorough consideration and that all interested

parties had an opportunity to comment, both in writing and at hearings. By
20

comparison, it is extremely rare for any product of the legislative process to

receive such objective consideration, public input, and expert review.

Congress has a legitimate interest in federal rule amendments because even

procedurally neutral rules may affect substantive rights, may give a practical

advantage to one type of litigant over another, and may require adjustment of

comfortable habits and practices. [FN141] Persons and organizations displeased

with proposed amendments, accordingly, are likely to exercise their political rights

by encouraging Congress to reject or modify specific amendments. Congress, of

course, is free under the Rules Enabling Act to make its own independent

judgment on the merits of any proposal, but it should -- and normally does -- give

considerable deference to rules amendments prescribed by the Supreme Court.

[FN142]

*1684 

As the Proposed Long Range Plan for the Federal Courts points out,

however, "[i]t is troubling . . . that bills are introduced in the Congress to amend

federal rules directly by statute, bypassing the orderly and objective process

established by the Rules Enabling Act." [FN143] In the 103d Congress, for

example, at least thirteen provisions were introduced to amend the federal rules

without following the prescribed statutory procedures.

Most of the provisions dealt with matters of considerable political interest, such as

victims' rights, [FN144] evidence in sexual assault and child molestation cases,

[FN145] and other criminal law issues. [FN146] For some controversial social

policy issues, it is inevitable -- or desirable -- to have policy established by the

legislature. [FN147] By avoiding the Rules Enabling Act process entirely,

however, Congress loses the benefit of the extensive record developed by the

rules committees, including the public comments and professional review by

judges, lawyers, and law professors. Moreover, recent experience shows that

some legislation amending the rules may be enacted without any hearings at all,

without public input, and without thoughtful review by the bench and bar.

Two examples from the 103d Congress illustrate contrasting ways in which

Congress has dealt with controversial statutory amendments to the rules. In the

Violent Crime Control and Law Enforcement Act of *1685 1994, [FN148]

Federal Rule of Evidence 412 was completely revised and new Rules 413, 414,

and 415 were added. The former received substantial public input and careful

review by bench and bar. The latter did not.

The proposed revision of Rule 412, commonly known as the "rape shield" rule,

was first included in comprehensive criminal legislation introduced in the Senate.

[FN149] It was designed to extend to all criminal cases and all civil litigation the

rule's long-standing prohibition against admitting evidence of a victim's past sexual

behavior in a case where the defendant has been accused of a crime of sexual

abuse. After the Senate bill was introduced, the judiciary committees of both the
21

House and the Senate asked the Judicial Conference to consider the merits of the

proposed rule on an expedited basis. [FN150]

The Advisory Committee on the Rules of Evidence drafted a substantially

improved version of the Senate rule, circulated it for public comment, and

conducted a public hearing. [FN151] The carefully crafted, revised rule met with

overwhelming public approval, [FN152] including approval from women's rights

groups, [FN153] and was subsequently adopted by the advisory committee, the

Standing Committee, and the Judicial Conference. [FN154] As a result, the House

decided not to include a revision of Rule 412 in its version of the crime legislation

and chose, instead, to let the rule drafted by the advisory committee take effect in

accordance with the normal operation of the Rules Enabling Act. [FN155]

In contrast to the cooperation between Congress and the judiciary in Rule 412,

new Federal Rules of Evidence 413, 414, and 415 were added as floor

amendments to the Senate crime control bill without public*1686 comment or

hearings and without communication with the rules committees. [FN156] The new

rules will admit evidence of a defendant's past similar acts in a criminal or civil case

involving a sexual assault or child molestation offense "for its bearing on any matter

to which it is relevant." [FN157] The rules contain no reference to Federal Rule of

Evidence 403, which allows a court to exclude evidence if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

misleading of the jury, or needless delay. Neither do they reference the hearsay

provisions of Article VIII of the Federal Rules of Evidence. Congressional

conferees added a provision to the Senate version of the bill specifying that the

new rules would take effect 150 days after enactment, unless the Judicial

Conference within that period recommends against them or submits alternate

recommendations, in which case the effective date of the rules will be delayed for

an additional 150 days. [FN158]

As a practical matter, the only restraints on Congress are self-imposed. They

include the existence of the Rules Enabling Act, which has codified a process of

openness and inter-branch coordination; the ordinary respect that one branch of

government owes the others; and the quality of the work product of the rulemaking

process. Obviously, political and social policy imperatives may tempt legislators to

bypass the objective and orderly process of the rulemakers in favor of quick and

popular results. As the recent experience with Rule 412 shows, however,

legislative objectives can be achieved -- with a substantially superior product and

in a reasonable time -- *1687 through adherence at least to the spirit of the Rules

Enabling Act.

On occasion, members of Congress work cooperatively with the rules committees,

deferring legislative proposals in order to give the rules committees the opportunity

to consider them as part of the rulemaking process. [FN159] Congress also has

the option of requesting that the Judicial Conference study a particular subject and
22

report its findings and recommendations. The 1994 crime control legislation, for

example, asked the Judicial Conference to evaluate and report on whether the

Federal Rules of Evidence should be amended to guarantee that the confidentiality

of communications between sexual assault victims and their therapists or

counselors will be adequately protected in federal court proceedings. [FN160]

Recent experience, thus, suggests that a de facto dual track procedure might

emerge to deal with rules amendments. On the one hand, the great majority of

rules changes would continue to be handled through the Rules Enabling Act

procedure. On the other hand, proposed changes with political implications might

be referred by the judiciary committees of Congress to the rules committees of the

Judicial Conference for consideration on an expedited basis.

 F. National Uniformity and Local Rules

Local court rules have been criticized by Congress and commentators as a threat

to the goal of uniform, simple rules of federal practice and *1688 a serious trap for

lawyers. [FN161] Criticism has also been directed at the sheer number of local

rules, which makes it difficult for lawyers to practice effectively in more than one

jurisdiction. [FN162] It has been argued, too, that some local rules are inconsistent

with the national rules. [FN163]

The 1988 amendments to the Rules Enabling Act were designed in part to restrict

the use of local rules. They set forth procedural requirements for courts to follow in

adopting rules and provide an oversight mechanism to ensure their consistency with

each other and with national rules. [FN164] Nevertheless, there are more than

5000 local rules regulating civil procedure alone, not including standing orders and

other local procedural requirements. [FN165]

The Standing Committee established a Local Rules Project in 1985 to review the

local rules of the district courts and the rules of the courts of appeals. [FN166]

The project's analysis of the rules and internal operating procedures of the courts

of appeals led the Advisory Committee on Appellate Rules to propose various

amendments to the Federal Rules of Appellate Procedure that substitute a single,

national rule for local variations. [FN167] The Local Rules Project has also

informed the district courts of problems with their local rules, including

inconsistencies with national rules or statutes, and it has devised a uniform

numbering system for local civil rules keyed to the numbering of the national rules.

Through voluntary cooperation with the courts and the circuit judicial councils,

progress is being made toward reducing the number of local rules and improving

their content. [FN168]

Federal rule amendments are pending in the Supreme Court that would require

local court rules to conform to any uniform numbering system *1689 that the

Judicial Conference may prescribe, thereby making it easier for an increasingly
23

national bar to locate a local rule that applies to a particular procedural issue.

[FN169] The amendments would also provide that no local rule imposing a

requirement of form may be enforced in a manner that causes a party to lose rights

because of a nonwillful failure to comply with the requirement. [FN170] Finally,

the rules would prohibit a court from imposing sanctions or other disadvantages for

noncompliance with any requirement not set forth in federal law, federal rule, or

local court rule, unless the alleged violator has been furnished with actual notice of

the requirement in the particular case. [FN171]

The Civil Justice Reform Act of 1990 has been seen as an even greater threat to

uniformity of federal practice. [FN172] The Act encourages each court to

experiment and innovate procedurally, taking into account the assessments and

recommendations of an advisory group of local lawyers and litigants. [FN173] It

requires the courts to consider six case management "principles and guidelines"

prescribed in the statute and authorizes them to include in their plan an additional

five "techniques" of litigation management and cost and delay reduction. [FN174]

The principles, guidelines, and techniques set forth in the Act, if adopted by a

district court, have been claimed to supersede certain provisions of the Federal

Rules of Civil Procedure. [FN175]

Some commentators argue that the Civil Justice Reform Act has resulted in much

greater "balkanization" [FN176] of civil practice and procedure among the

ninety-four district courts. In addition, the December 1, 1992 amendments to

Federal Rule of Civil Procedure 26,dealing *1690 with pretrial disclosure and

discovery, authorize the district courts individually to "opt out" of its provisions,

thereby adding further variations to practice among the district courts. [FN177]

The Civil Justice Reform Act, however, contemplates a possible return to greater

national uniformity following a review of the results of its mandated pilot programs.

The Judicial Conference will consider the results of a comprehensive empirical

study assessing the extent to which costs and delays will have been reduced as a

result of the Act's pilot programs and experimentation. [FN178] The Conference

must submit a report to Congress by December 31, 1996, recommending whether

the Act's principles and guidelines should be made mandatory and incorporated in

the federal rules. The Conference is further required to "initiate" appropriate

changes to the federal rules to implement any changes recommended. [FN179]

Can greater national uniformity in federal practice and procedure be achieved?

Probably so -- but not before the period of experimentation and evaluation

required by the Civil Justice Reform Act has been concluded. The Proposed Long

Range Plan for the Federal Courts recognizes that some local rules are appropriate

to account for differing local conditions and to allow experimentation with new

procedures. [FN180] It declares, however, that the long term emphasis of the

courts should be on promoting nationally uniform rules of practice and procedure.

[FN181] To this end, the Plan calls for the Judicial Conference and the circuit
24

judicial councils to exercise their statutory authority [FN182] to review local rules

and reduce the number of *1691 local rules and standing orders. [FN183]

 CONCLUSION

The organizational structure and the procedural approach of the rulemaking

process are largely accepted as fundamentally sound by Congress, the bench, and

the bar. Nevertheless, specific procedural aspects of the process have been

criticized in recent years. In response, the process has been reexamined and

periodically renewed as part of: (1) the Judicial Conference's "fresh look" at the

process in the 1980s; (2) the five-year review of rulemaking by Congress that

culminated in the 1988 amendments to the Rules Enabling Act; and (3) the

judiciary's ongoing long range planning efforts.

Enormous progress has been made toward opening the rulemaking process and to

stimulating participation by the bench, bar, academia, and the public. All activities

of the rules committees are documented and readily accessible. Several important

opportunities and challenges, however, remain to be addressed by the rules

committees. The most common complaints are that the rules are not as simple, well

written, and predictable as they once were and that federal practice is far less

uniform than it should be. Moreover, Congress on occasion does not adhere to the

time-tested and orderly process established by the Rules Enabling Act.

The newly approved Long Range Plan for the Federal Courts recognizes these

problems and calls upon the judiciary to place greater emphasis on adopting rules

that promote simplicity in procedure, fairness in administration, and the just,

speedy, and inexpensive determination of litigation. It also calls for adherence to

the Rules Enabling Act process, greater uniformity in federal practice, fewer local

rules, and greater participation by the bar in the rulemaking process. The

recommendations of the Plan, together with ongoing scrutiny by the bench, bar,

academia, Congress, and the public, will ensure the continuing renewal of the

federal rulemaking process.
25

[FNa]. J.D., Harvard Law School; A.B., Columbia University. Assistant Director

 for Judges Programs, Administrative Office of the United States Courts and

 Secretary to the Judicial Conference Standing Committee on Rules of Practice and

 Procedure. The views expressed in this Article are the author's own.

 [FN1]. 28 U.S.C. s 331 (1988).

 [FN2]. Rules Enabling Act: Hearings on H.R. 4144 Before the Subcomm. on

 Courts, Civil Liberties and the Administration of Justice of the House Comm. on

 the Judiciary, 98th Cong., 1st & 2d Sess. 12 (1983 & 1984) [hereinafter 1983-84

 Hearings] (statement of Judge Edward Thaxter Gignoux, Judicial Conference of

 the United States). The success of the Federal Rules of Civil Procedure has been

 described as "quite phenomenal." Charles A. Wright, Law of Federal Courts s 62,

 at 429 (5th ed. 1994); see also Geoffrey C. Hazard, Jr., Discovery Vices and

 Trans-Substantive Virtues in the Federal Rules of Civil Procedure, 137 U. Pa. L.

 Rev. 2237, 2237 (1989) (describing Rules as "a major triumph of law reform");

 Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are

 the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901, 1905-07 (1989)

 (describing Rules as a "great success" and cautioning against utilizing Rules to erect

 barriers to courts).

 [FN3]. Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure , s

 1005 (2d ed. 1987). See, e.g., H.R. Rep. No. 889, 100th Cong., 2d Sess. 27

 (1988); Howard Lesnick, The Federal Rule-Making Process: A Time for

 Re-examination, 61 A.B.A. J. 579, 579 (1975).

 [FN4]. The term "federal rules" is used to collectively describe the Federal Rules

 of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal Rules of

 Bankruptcy Procedure, the Federal Rules of Appellate Procedure, the Federal

 Rules of Evidence, the Rules Governing Section 2254 Cases in the United States

 District Courts, and the Rules Governing Proceedings in the United States District

 Courts Under Section 2255 of Title 28, United States Code.

 [FN5]. Committee on Long Range Planning, Judicial Conference of the U.S.,

 Proposed Long Range Plan for the Federal Courts recommendation 30, at 54 (2d

 prtg. 1995) [hereinafter 1995 Proposed Long Range Plan ]; see also infra note 7.

 [FN6]. 1995 Proposed Long Range Plan , supra note 5, at 54; see also infra note

 7.

 [FN7]. 60 Fed. Reg. 30,317 (1995). The Judicial Conference's Long Range
26

 Planning Committee prepared the Plan following consultation with the other

 Conference committees, wide distribution within and outside the judiciary, and

 public comments and hearings.

 [FN8]. See, e.g., Winifred R. Brown, Federal Judicial Ctr., Federal Rulemaking:

 Problems and Possibilities (1981); Warren E. Burger, The State of the Federal

 Judiciary, 1979, 65 A.B.A. J. 358, 360 (1979); Symposium: The Rule-Making

 Function and the Judicial Conference of the United States, 21 F.R.D. 117 (1957)

 [hereinafter Symposium].

 [FN9]. See 1995 Proposed Long Range Plan , supra note 5, at 54.

 [FN10]. See, e.g., Wright & Miller , supra note 3, s 1001; see generally Joseph

 R. Biden, Jr., Congress and the Courts: Our Mutual Obligation, 46 Stan. L. Rev.

 1285 (1994); Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa.

 L. Rev. 1015 (1982); A. Leo Levin & Anthony G. Amsterdam, Legislative

 Control over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U.

 Pa. L. Rev. 291 (1958); Linda S. Mullenix, The Counter- Reformation in

 Procedural Justice, 77 Minn. L. Rev. 375 (1992) [hereinafter Mullenix,

 Counter-Reformation]; Linda S. Mullenix, Unconstitutional Rulemaking: The Civil

 Justice Reform Act and Separation of Powers, 77 Minn. L. Rev. 1283 (1993);

 Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599 (1926);

 John H. Wigmore, All Legislative Rules for Judiciary Procedure Are Void

 Constitutionally, 23 Ill. L. Rev. 276 (1928). 

 The Supreme Court recognizes the ultimate power of Congress to regulate the

 practice and procedure of federal courts and has declared that Congress may

 exercise that power by delegating it to the judiciary to make rules not inconsistent

 with the Constitution or federal statutes. See Hanna v. Plumer, 380 U.S. 460,

 472-74 (1965); Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941). 

 Judge Weinstein points out that rulemaking falls within an area where activities of

 the legislative and judicial branches merge and that historically there has been a

 "practical accommodation" between the two branches. Jack B. Weinstein, Reform

 of Federal Court Rulemaking Procedures, 76 Colum. L. Rev. 905, 916, 922

 (1976). Judge Weinstein's law review article is an abbreviated version of his book.

 See Jack B. Weinstein, Reform of Court Rule-Making Procedures (1977).

 [FN11]. Act of June 19, 1934, ch. 651, 48 Stat. 1064 (codified as amended at

 28 U.S.C. ss 331,2071-77 (1988 & Supp. V 1993)); see also Hanna, 380 U.S.

 at 472-74.

 [FN12]. 28 U.S.C. s 331 (1988 & Supp. V 1993). While the 1934 Act applied
27

 explicitly only to civil actions at law, the Court had long-standing rulemaking

 authority over equity and admiralty practice. See, e.g., Act of May 8, 1792, ch.

 XXXVI, 1 Stat. 275.

 [FN13]. Order of June 3, 1935, Appointment of Committee to Draft Unified

 System of Equity and Law Rules, 295 U.S. 774, 774-75 (1935) (ordering

 committee "to prepare and submit to the Court a draft of a unified system of

 rules").

 [FN14]. Final Report of the Advisory Committee on Rules for Civil Procedure , at

 V (Nov. 4, 1937).

 [FN15]. Fed. R. Civ. P. 86(a).

 [FN16]. Act of June 29, 1940, ch. 445, 54 Stat. 688. This Act was superseded

 by the Rules Enabling Act amendments of 1988 and is now incorporated in 28

 U.S.C. s 2072(a) (1988). The Court had been given authority in 1933 to

 prescribe rules for criminal proceedings after verdict. Act of Feb. 24, 1933, ch.

 119, 47 Stat. 904.

 [FN17]. Report of the Advisory Committee on Federal Rules of Criminal

 Procedure (1944).

 [FN18]. Fed. R. Crim. P. 59.

 [FN19]. Act of July 11, 1958, Pub. L. No. 85-513, 72 Stat. 356 (codified at 28

 U.S.C. s 331 (1988 & Supp. V 1993)).

 [FN20]. Id. s 331.

 [FN21]. 28 U.S.C. ss 2072, 2073.

 [FN22]. Judicial Conference of the U.S. , Reports of the Proceedings of the

 Judicial Conference of the United States 6-7 (1958).

 [FN23]. Id.; see also Albert B. Maris, Federal Procedural Rule-Making: The

 Program of the Judicial Conference, 47 A.B.A. J. 772, 772 (1961).

 [FN24]. 383 U.S. 1029 (1966).

 [FN25]. 389 U.S. 1063 (1968).
28

 [FN26]. 411 U.S. 989 (1973). Statutory authority to promulgate bankruptcy rules

 was provided in 1964. Act of Oct. 3, 1964, Pub. L. No. 88- 623, s 1, 78 Stat.

 1001 (codified as amended at 28 U.S.C. s 2075 (1988)).

 [FN27]. Act of Sept. 28, 1976, Pub. L. No. 94-426, s 1, 90 Stat. 1334 (codified

 as amended at 28 U.S.C. s 2254, 2255 (1988 & Supp. V 1993)).

 [FN28]. Fed. R. Crim. P. 58. This rule was added in 1990 and essentially restated

 the prior misdemeanor rules.

 [FN29]. Between 1937 and 1972, the Supreme Court transmitted new rules or

 rules amendments to Congress on 14 occasions.

 [FN30]. Order of Nov. 20, 1972, 56 F.R.D. 183, 184 (S. Ct. 1972).

 [FN31]. See H.R. Rep. No. 422, 99th Cong., 1st Sess., 12-14, 20-21 (1985);

 Dissent of Justice Douglas to submission of the proposed Federal Rules of

 Evidence, 409 U.S. 1132 (1973); see also Charles A. Wright, Book Review of

 Jack B. Weinstein, Reform of Court Rule-Making Procedures, 9 St. Mary's L.J.

 652, 653-54 (1978) [hereinafter Wright, Book Review].

 [FN32]. Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926 (codified at 40

 U.S.C. s 472 (1988)).

 [FN33]. See Fed. R. Evid. 501.

 [FN34]. 28 U.S.C. s 2074(b) (1988).

 [FN35]. Id.

 [FN36]. A list of the instances of congressional intervention is set forth in H.R.

 Rep. No. 422, supra note 31, at 8-9. Most recently, in 1994, Congress took the

 unprecedented step of enacting revised Federal Rule of Evidence 412 that had

 been approved by the Judicial Conference, enacting portions of the Conference

 proposal that had been withheld by the Supreme Court. See Violent Crime

 Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, s 40141, 108

 Stat. 1796, 1918 (codified in scattered sections of 42 U.S.C.).

 [FN37]. See Weinstein , supra note 10, at 316-17; Lesnick, supra note 3, at

 580-81.
29

 [FN38]. William L. Hungate, Changes in the Federal Rules of Criminal Procedure,

 61 A.B.A. J . 1203, 1207 (1975).

 [FN39]. Burger, supra note 8, at 360.

 [FN40]. Id. The functions of the Federal Judicial Center are set forth generally at

 28 U.S.C. s 620.

 [FN41]. See Brown , supra note 8.

 [FN42]. See Brown , supra note 8.

 [FN43]. See Procedures for the Conduct of Business by the Judicial Conference

 Committees on Rules of Practice and Procedure, 98 F.R.D. 337, 347 (1983).

 [FN44]. See, e.g., H.R. Rep. No. 889, 100th Cong., 2d Sess. 27 (1988)

 (describing subcommittee's review of rulemaking process from 1983 to 1988).

 [FN45]. See 1983-84 Hearings, supra note 2; Rules Enabling Act of 1985:

 Hearings on H.R. 2633 and H.R. 3550 Before the Subcomm. on Courts, Civil

 Liberties, and the Administration of Justice of the House Comm. on the Judiciary,

 99th Cong., 1st Sess. (1985) [hereinafter 1985 Hearings].

 [FN46]. See H.R. Rep. No. 889, supra note 44, at 3-4. Congress eventually

 enacted the bill. See Judicial Improvements and Access to Justice Act, Pub. L.

 No. 100-702, 102 Stat. 4642, 4649 (1988) (codified as amended at 28 U.S.C.

 ss 2071-2075 (1988 & Supp. V 1993)).

 [FN47]. 28 U.S.C. s 2073(a)(2)(b); see also H.R. Rep. No. 889, supra note 44,

 at 3.

 [FN48]. See H.R. Rep. No. 889, supra note 44, at 3.

 [FN49]. 1985 Hearings, supra note 45, at 248 (statement of Judge Edward

 Thaxter Gignoux).

 [FN50]. See 28 U.S.C. s 2073(a)(2).

 [FN51]. Id. s 2072(b).

 [FN52]. See H.R. Rep. No. 889, supra note 44, at 28.
30

 [FN53]. 462 U.S. 919 (1983).

 [FN54]. See H.R. Rep. No. 889, supra note 44, at 28; see also H.R. Rep. No.

 422, supra note 31, at 16-17. In Chadha, the Court held that the one-house veto

 provision of the Immigration and Naturalization Act, under which either the House

 or the Senate could by resolution invalidate an executive branch decision to allow a

 deportable alien to remain in the United States, was unconstitutional because

 Article I of the Constitution requires all legislation to be passed by both the House

 and the Senate and either signed by the President or repassed by both the House

 and the Senate over the President's veto. See INS v. Chadha, 462 U.S. 919,

 956-59 (1983).

 [FN55]. See H.R. Rep. No. 889, supra note 44, at 3.

 [FN56]. Judicial Improvements and Access to Justice Act, Pub. L. No. 100- 702,

 102 Stat. 4642 (1988) (codified as amended at 28 U.S.C. ss 2071- 2075 (1988

 & Supp. V 1993)).

 [FN57]. See H.R. Rep. No. 422, supra note 31, at 14-15, 17; see also Daniel R.

 Coquillette et al., The Role of Local Rules, 75 A.B.A. J. 62, 64- 65 (1989);

 Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity,

 Divergence, and Emerging Procedural Patterns, 137 U. Pa. L. Rev. 1999,

 2018-26 (1989).

 [FN58]. Fed. R. Civ. P. 83; Fed. R. Crim. P. 57 .

 [FN59]. See H.R. Rep. No. 889, supra note 44, at 28-29.

 [FN60]. 28 U.S.C. s 2071(b) (1988).

 [FN61]. Id. s 2077(b) (Supp. V 1993).

 [FN62]. Id. ss 331, 2071(c) (1988).

 [FN63]. Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089

 (codified at 28 U.S.C. ss 471-482 (Supp. V 1993)). The impetus for the Rules

 Enabling Act amendments of 1988 came from the House Judiciary Subcommittee

 on Courts, Civil Liberties, and the Administration of Justice. See supra notes

 44-56 and accompanying text. The driving force behind the Civil Justice Reform

 Act was the Senate Judiciary Committee and its chairman, Senator Joseph R.

 Biden, Jr. See, e.g., 136 Cong. Rec. S. 407, S. 414 (daily ed. Jan. 25, 1990)
31

 (statement of Sen. Biden).

 [FN64]. 28 U.S.C. ss 471, 472 (Supp. V 1993); see Part III, infra; see also Carl

 Tobias, Improving the 1988 and 1990 Judicial Improvements Acts, 46 Stan. L.

 Rev. 1589 (1994) (discussing inconsistencies between 1988 and 1990 statutes).

 [FN65]. The 1988 amendments to the Rules Enabling Act codified the committee

 structure established by the Conference in 1958. See 28 U.S.C. s 2073(a), (b)

 (1988).

 [FN66]. Id. s 331.

 [FN67]. The Advisory Committee on the Rules of Evidence was discharged in

 1975 and reestablished in 1993. Judicial Conference of the U.S., Reports of the

 Proceedings of the Judicial Conference of the United States 80 (1992)

 [[hereinafter 1992 Judicial Conference Reports ].

 [FN68]. See H.R. Rep. No. 422, supra note 31, at 24; American Bar

 Association, Policy on the Rules Enabling Act, reprinted in 1983-84 Hearings,

 supra note 2, at 46, 51; Lesnick, supra note 3, at 581.

 [FN69]. The American Bar Association, for example, has proposed that

 "practicing lawyers" comprise a majority of the rules committees. Resolution of the

 ABA House of Delegates, Aug. 9-10, 1994.

 [FN70]. See, e.g., 1985 Hearings, supra note 45, at 64 (statement of the

 American Bar Association).

 [FN71]. Judicial Conference of the U.S., Reports of Proceedings of the Judicial

 Conference of the United States 60 (1987) [hereinafter 1987 Judicial Conference

 Reports ] (establishing current membership policies). It has been suggested that the

 terms of office of committee chairs and members, once viewed as too long in the

 rules context, now might not be long enough. See 1995 Proposed Long Range

 Plan , supra note 5, recommendation 46, at 73.

 [FN72]. See 1987 Judicial Conference Reports , supra note 71, at 60.

 [FN73]. See 1987 Judicial Conference Reports , supra note 71, at 60.

 [FN74]. See Lesnick, supra note 3, at 580; see also 1985 Hearings, supra note

 45, at 57, 70-71 (statement of Professor Paul F. Rothstein, American Bar
32

 Association); 1983-84 Hearings, supra note 2, at 87 (statement of Rep.

 Kastenmeier); id. at 43-44 (statement of James F. Holderman, American Bar

 Association).

 [FN75]. See Rules of Civil Procedure, Procedures for the Conduct of Business by

 the Judicial Conference Committees on Rules of Practice and Procedure, 98

 F.R.D. 337, 347 (1983). The statement, however, did not include a requirement

 of open committee meetings.

 [FN76]. See 28 U.S.C. s 2073(a)(1) (1988).

 [FN77]. Administrative Office of the U.S. Courts, The Federal Rules of Practice

 and Procedure: A Summary for Bench and Bar (1993).

 [FN78]. See 1983-84 Hearings, supra note 2, at 46 (statement of the American

 Bar Association's Criminal Justice Section); id. at 36 (statement of Alan B.

 Morrison, Director, Public Citizen, Litigation Group).

 [FN79]. See 1985 Hearings, supra note 45, at 47 (statement of Professor Paul F.

 Rothstein, American Bar Association).

 [FN80]. Congress enacted the new evidence rules as part of the Violent Crime

 Control and Law Enforcement Act of 1994, supra note 36, s 320935.

 [FN81]. For example, the Advisory Committee on Criminal Rules deferred action

 on proposed amendments to Criminal Rules 10 and 43 in response to generally

 negative written comments and public testimony. The proposed amendments

 would have permitted the use of video conferencing in arraignments and in other

 pretrial sessions when the accused was not present in the courtroom. H.R. Doc.

 No. 65, 104th Cong., 1st Sess. 15-16 (1995).

 [FN82]. See Lesnick, supra note 3, at 580.

 [FN83]. See Wright, supra note 31, at 656.

 [FN84]. See, e.g., 1983-84 Hearings, supra note 2, at 44 (statement of James F.

 Holderman, American Bar Association); Lesnick, supra note 3, at 580.

 [FN85]. See, e.g., 1983-84 Hearings, supra note 2, at 34-36 (statement of Alan

 B. Morrison, Director, Public Citizen, Litigation Group) (describing process as

 "secretive"); id. at 125-28 (statement of Richard M. Schmidt, Jr., General
33

 Counsel, American Society of Newspaper Editors).

 [FN86]. 28 U.S.C. s 2073(c) (1988). The authority has been exercised rarely.

 [FN87]. The April 1994 meeting of the Advisory Committee on Criminal Rules,

 which included a discussion of cameras in the courtroom, was televised on C-

 SPAN.

 [FN88]. 1983-84 Hearings, supra note 2, at 34, 35 (statement of Alan B.

 Morrison, Director, Public Citizen Litigation Group).

 [FN89]. See Brown, supra note 8, at 23, 27; cf. 1983-84 Hearings, supra note 2,

 at 36-39 (statement of Alan B. Morrison, Director Public Citizen Litigation Group)

 (noting that filed comments were not widely read).

 [FN90]. This report is commonly known as the "Gap" report. See supra Part II.D

 (discussing process of "Gap" report).

 [FN91]. See 28 U.S.C. ss 2074, 2075 (1988 & Supp. V 1993).

 [FN92]. See id. The effective date of the Federal Rules of Bankruptcy Procedure

 (and other procedural requirements) were made consistent with the other federal

 rules by the Bankruptcy Reform Act of 1994. See Bankruptcy Reform Act of

 1994, Pub. L. No. 103-394, s 104(e), (f), 1994 U.S.C.C.A.N. (108 Stat.) 4106.

 Previously, the effective date had been 90 days after the Chief Justice reported the

 changes to Congress, i.e., about August 1. See 28 U.S.C. s 2075 (1988).

 [FN93]. See 28 U.S.C. ss 2074, 2075 (1988 & Supp. V 1993).

 [FN94]. See Weinstein , supra note 10, at 96-104, 147-49; see also

 Amendments to Rules of Civil Procedure for the U.S. District Courts, 374 U.S.

 861, 869-70 (1963) (statement of Justices Black and Douglas) (opposing

 submission of proposed amendments to the Federal Rules of Civil Procedure);

 Reporter's Note on Order of Nov. 20, 1972, 409 U.S. 1132, 1133 (1963)

 (Douglas, J., dissenting) (arguing that Court is "mere conduit" to Congress and its

 approval of rules amendments is only perfunctory).

 [FN95]. H.R. 4144, 98th Cong., 1st Sess. (1983).

 [FN96]. Letter from Warren E. Burger, Chief Justice of the United States, to

 Chairman Robert W. Kastenmeier, reprinted in 1983-84 Hearings, supra note 2,
34

 at 195. The Conference of Chief Justices of the States also opposed elimination of

 a role for the Supreme Court, arguing that "the rule-making power is an inherent

 power necessary to the functioning of the judicial branch of government and ...

 should be vested only in the Supreme Court itself." Letter of March 6, 1984 from

 Connecticut Chief Justice John A. Speziale to Robert W. Chairman Kastenmeier,

 reprinted in 1983-84 Hearings, supra note 2, at 231.

 [FN97]. In voting to prescribe the 1993 amendments to the Federal Rules of Civil

 Procedure, Justice White stated that the Court should defer to the Judicial

 Conference and its committees if they have a rational basis for the proposed

 amendments to the rules. Justice White saw the Court's role as limited to

 transmitting the Judicial Conference's recommendations without change and

 without careful study, as long as the rules committee system has acted with

 integrity. See Communication from the Chief Justice, the Supreme Court of the

 United States, Transmitting Amendments to the Federal Rules of Civil Procedure

 and Forms, Pursuant to 28 U.S.C. s 2072, 113 S. Ct. 476, 575, 578-79 (1992)

 [hereinafter Amendments to the Federal Rules of Civil Procedure] (statement of

 Justice White).

 [FN98]. Letter of Transmittal from William H. Rehnquist, Chief Justice of the

 United States to the U.S. Congress, 500 U.S. 964 (1991) (transmitting

 amendments to Federal Rules of Criminal Procedure).

 [FN99]. Amendments to the Federal Rules of Civil Procedure, supra note 97, at

 478 (granting order approving amendments to Federal Rules of Civil Procedure).

 [FN100]. Amendments to the Federal Rules of Civil Procedure, supra note 97, at

 581-87 (Scalia, Thomas, Souter, J.J., dissenting).

 [FN101]. Communication from the Chief Justice, the Supreme Court of the United

 States, Transmitting an Amendment to the Federal Rules of Evidence as Adopted

 by the Court, Pursuant to 28 U.S.C. s 2076, 114 S. Ct. 682, 684- 85 (1994)

 [hereinafter Communication from the Chief Justice] (noting in letter to John F.

 Gerry, Chair of the Executive Committee of the Judicial Conference, that Court

 withheld Rule 412); see infra notes 148-58 and accompanying text.

 [FN102]. See Letter of Transmittal from William H. Rehnquist, Chief Justice of the

 United States, to Thomas S. Foley, Speaker of the U.S. House of Representatives

 (Apr. 22, 1993), reprinted in Amendments to the Federal Rules of Civil

 Procedure, supra note 97, at 477.
35

 [FN103]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30,

 at 54.

 [FN104]. As a result of the subcommittee's efforts, Rule 9036 of the Federal

 Rules of Bankruptcy Procedure took effect on August 1, 1993, authorizing the

 bankruptcy courts, or their designees, to send required notices by electronic

 means, rather than by mail, with the consent of the recipients. Fed. R. Bankr. P.

 9036. The rule is designed to expedite cases and reduce costs to litigants and the

 courts by allowing creditors to receive information on meetings of creditors,

 discharges, and other events by electronic transmission on their own computer

 terminals. Id. advisory committee's note.

 [FN105]. See Fed. R. App. P. 25(a)(2)(D) (proposed amendments); Fed. R.

 Bankr. P. 5005(a)(2) (proposed amendments); Fed.R.Civ.P. 5(e) (proposed

 amendments), in Committee on Rules of Practice and Procedure of the Judicial

 Conference of the U.S., Request for Comment on Preliminary Draft of Proposed

 Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal

 Procedure, 156 F.R.D. 339, 15, 113 (1994) [hereinafter Proposed

 Amendments].

 [FN106]. See 28 U.S.C. s 2074(a) (1988 & Supp. V 1993).

 [FN107]. Professor Hazard has suggested that most members of the bar and the

 public have little that is worth saying about procedural rules and do not take

 advantage of the abundant opportunity they have to provide input. Geoffrey C.

 Hazard, Jr., Undemocratic Legislation, 87 Yale L.J. 1284, 1291 (1978)

 (reviewing Weinstein , supra note 10).

 [FN108]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 54-55.

 [FN109]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 54-55. In proposing the 1958 legislation that required the Judicial

 Conference to conduct a "continuous study of the operation and effect of the

 [federal] rules," it was contemplated that the bar would have an active and

 important part in formulating the rules. "[E]very member of the bar [[should have]

 an ample opportunity to set forth his views, have them debated, and have them

 decided." Symposium, supra note 8, at 125 (statement of Chief Judge John Biggs,

 Jr., former Chief Judge of the Third Circuit). "What ... lawyers expect and have a

 right to expect is an opportunity to state [their] view and assurances they will be

 given consideration." Id. at 120 (remarks of Thomas Scanlon, President of the
36

 Seventh Circuit Bar Association, former Chairman of the Committee on Civil

 Procedure of the Indiana Bar Association); see also id. at 118 (statement of Chief

 Justice Earl Warren) (agreeing with Chief Judge Biggs that bar will have active and

 important part in formulation of rules).

 [FN110]. 28 U.S.C. s 331 (1988 & Supp. V 1993).

 [FN111]. See Symposium, supra note 8, at 123-24 (statement of Chief Judge

 John Biggs, Jr., former Chief Judge of the Third Circuit); id. at 131-32 (statement

 of Professor James W. Moore). The vision of activist committees with permanent

 monitoring capabilities, however, never came to pass. In fact, for many years

 Congress included a strict limit on funding for the rules committees in the judiciary's

 annual appropriations.

 [FN112]. Amendments to the Federal Rules of Civil Procedure, supra note 97, at

 581, 586-87 (Scalia, Thomas, Souter, J.J., dissenting).

 [FN113]. See Wright , supra note 2, at 435. Professor Wright noted that the

 criminal rules "have been amended so frequently that even scholars in the field find

 it difficult to follow the constant changes or to be certain what a particular rule

 provided at a particular time." Id. Likewise, he pointed out his difficulty in knowing

 what appellate rules were in effect at a given time, because four different sets of

 amendments to the Federal Rules of Appellate Procedure had recently been

 adopted or were proceeding to adoption. Charles A. Wright, Foreword: The

 Malaise of Federal Rulemaking, 14 Rev. Litig. 1, 9 (1994) [hereinafter Wright,

 Foreword].

 [FN114]. Order Prescribing Amendments to the Federal Rules of Civil Procedure,

 446 U.S. 995, 1000 (1980) (Powell, J., dissenting); see also Michael E. Tigar,

 Pretrial Case Management Under the Amended Rules: Too Many Words for a

 Good Idea, 14 Rev. Litig. 137, 138 (1994) (arguing that there has been such

 "tinkering and fiddling" with Federal Rules of Civil Procedure that rulemakers are

 defeating primary objective of a "just, speedy, and inexpensive determination of

 every action").

 [FN115]. See John P. Frank, The Rules of Civil Procedure -- Agenda for

 Reform, 137 U. Pa. L. Rev. 1883, 1884-85 (1989).

 [FN116]. See Stephen B. Burbank, Ignorance and Procedural Law Reform: A

 Call for a Moratorium, 59 Brook. L. Rev. 841 (1993).
37

 [FN117]. See Frank, supra note 115, at 1884-85.

 [FN118]. Congress, for example, enacted comprehensive bankruptcy reform

 legislation in 1984, 1986, and 1994, effecting both substantive and procedural

 changes, including establishment of a new court system, expansion of the U.S.

 trustee system, addition of Chapter 12 for family farmers, inclusion of numerous

 commercial and consumer bankruptcy changes, and addition of new procedural

 requirements. Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.

 L. No. 98-353, 98 Stat. 333; Bankruptcy Judges, United States Trustees, and

 Family Farmer Bankruptcy Act of 1986, Pub. L. No. 99-554, 100 Stat. 3088;

 Bankruptcy Reform Act of 1994, supra note 92. The first two statutes required

 extensive changes in the Federal Rules of Bankruptcy Procedure, which took

 effect in 1987 and 1991. H.R. Doc. No. 54, 100th Cong., 1st Sess. 152 (1987);

 H.R. Doc. No. 80, 102d Cong., 1st Sess. 170 (1991). Rules changes to

 accommodate the 1994 legislation are presently under consideration by the

 Advisory Committee on Bankruptcy Rules.

 [FN119]. Each set of federal rules was amended in the mid-1980s to eliminate

 gender-specific language.

 [FN120]. For example, the Judicial Conference in September 1994 approved an

 unpublished amendment to Fed. R. Crim. P. 49(e) to delete a reference to an

 abrogated section of the U.S. Code. Judicial Conference of the U.S., Reports of

 the Proceedings of the Judicial Conference of the United States 67 (1994)

 [[hereinafter 1994 Judicial Conference Reports ].

 [FN121]. See infra Part III.E (discussing relationship between judiciary and

 Congress).

 [FN122]. To the contrary, in 1992 the Advisory Committee on Civil Rules

 proposed a general revision of the summary judgment rule, Fed. R. Civ. P. 56, that

 would have codified case law. The proposal, however, was rejected by the

 Judicial Conference. 1992 Judicial Conference Reports , supra note 67, at 82.

 [FN123]. Proposed Amendments, supra note 105, at 484.

 [FN124]. Proposed Amendments, supra note 105, at 484.

 [FN125]. Proposed Amendments, supra note 105, at 484.

 [FN126]. Bankruptcy Reform Act of 1994, supra note 92.
38

 [FN127]. See Common Sense Legal Reform Act, H.R. 10, 104th Cong., 1st

 Sess. (1995); Taking Back Our Streets Act, H.R. 3, 104th Cong., 1st Sess.

 (1995).

 [FN128]. The 1993 amendments to the Federal Rules of Civil Procedure, for

 example, were criticized for being promulgated without awaiting the results of the

 empirical studies carried out under the Civil Justice Reform Act of 1990. See

 Amendments to the Federal Rules of Civil Procedure, supra note 97, at 585-86

 (Scalia, Thomas, Souter, J.J., dissenting); see also Burbank, supra note 116, at

 844-46; Linda S. Mullenix, Discovery in Disarray: The Pervasive Myth of

 Pervasive Discovery Abuse and the Consequences for Unfounded Rulemaking, 46

 Stan. L. Rev. 1393, 1396 (1994).

 [FN129]. See Elizabeth C. Wiggins et al., The F.J.C. Study of Rule 11, F.J.C.

 Directions 3 (Nov. 1991) (summarizing results of three separate analyses of Rule

 11 activity in cases filed in five federal district courts); see also Fed. R. Civ. P. 11

 advisory committee's note 1993 (listing various empirical studies that committee

 considered).

 [FN130]. Fed. R. Crim. P. 53. The advisory committee and the Standing

 Committee proposed an amendment to Fed. R. Crim. P. 53 that would have

 removed the rule's absolute prohibition on cameras in the courtroom in criminal

 cases, but the proposal was rejected by the Judicial Conference. 1994 Judicial

 Conference Reports , supra note 120, at 67.

 [FN131]. See Burbank, supra note 10, at 1042-98; Lauren Robel, Fractured

 Procedure: The Civil Justice Reform Act of 1990, 46 Stan. L. Rev. 1447, 1449,

 1483 (1994).

 [FN132]. See Stephen B. Burbank, The Transformation of American Civil

 Procedure: The Example of Rule 11, 137 U. Pa. L. Rev. 1925, 1941 (1989)

 [[hereinafter Burbank, Transformation]; Frank, supra note 115, at 1884-85.

 [FN133]. See generally Frank, supra note 115, at 1884-85.

 [FN134]. See Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53

 U. Chi. L. Rev. 494, 547 (1986) (arguing that trans-substantive premise of rules

 has proved "unworkable"); Mark C. Weber, The Federal Civil Rules Amendments

 of 1993 and Complex Litigation: A Comment on Transsubstantivity and Special

 Rules for Large and Small Federal Cases, 14 Rev. Litig. 113, 114-15 (1994)

 (suggesting need for special rules for small cases). Compare Paul D. Carrington,
39

 Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the

 Body of Non-Trans-Substantive Rules of Civil Procedure, 137 U. Pa. L. Rev.

 2067, 2067 (1989) (arguing that rules must be applied trans-substantively, and

 that process is not competent to develop process of rules to be applicable to only

 one subject area) with Burbank, Transformation, supra note 132, at 1934-35

 (arguing that legislative history does not support trans-substantive application of

 rules). The Civil Justice Reform Act requires the district courts to consider systems

 to separate civil cases into different "tracks," with different pretrial requirements

 based on the degree of a case's complexity, the time the case requires for trial

 preparation, and the resources it will require. 28 U.S.C. s 473(a) (Supp. V 1993).

 [FN135]. Bryan A. Garner, Guidelines for Drafting and Editing Court Rules

 (forthcoming 1995).

 [FN136]. See Fed. R. Bankr. P. 9006; Fed. R. Civ. P. 6; Fed. R. Crim. P. 45.

 [FN137]. See Fed. R. App. P. 45; Fed. R. Bankr. P. 5001; Fed. R. Civ. P. 77;

 Fed. R. Crim. P. 56.

 [FN138]. See Fed. R. App. P. 47; Fed. R. Bankr. P. 9029; Fed. R. Civ. P. 83;

 Fed. R. Crim. P. 57.

 [FN139]. Representative Kastenmeier suggested that "as a result of the shadowy

 nature of the rulemaking process, a number of proposed rules changes" were

 rejected by Congress in the 1970s and early 1980s. 1983-84 Hearings, supra

 note 2, at 154 (statement of Rep. Kastenmeir from Congressional Record of Oct.

 18, 1983).

 [FN140]. Professor Wright suggests, however, "that the rulemaking process

 worked far better when it was carried on in private." Wright, Foreword, supra

 note 113, at 2-3 n.6.

 [FN141]. It has been suggested that some amendments pushed "the rulemaking

 process into controversial uncharted areas of law and this has been affecting the

 rights of litigants in a fashion more likely to create the kind of pressure from the

 public and the legal profession that generates congressional response." Robert N.

 Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need

 for Reform of the Rules Enabling Acts, 63 Iowa L. Rev. 15, 52 (1977). Any

 amendments, for example, that are seen as affecting the balance between the

 prosecution and the defense in criminal cases are likely to generate a congressional

 response.
40

 [FN142]. William L. Hungate, Changes in the Federal Rules of Criminal

 Procedure, 61 A.B.A. J. 1203, 1207 (1975). Hungate states: 

 The result of [the judiciary's rulemaking] procedure is that any change proposed by

 the Supreme Court has received careful consideration by a number of able people.

 This does not mean that we in Congress should forgo our responsibility to make an

 independent judgment on the merit of any proposal. It does mean, however, that

 we should accord a healthy respect to any amendment proposed by the Supreme

 Court. 

 Id. Judge Weinstein suggests that Congress should confine itself "to the review of

 substantial principles," rather than "details of rules." Weinstein , supra note 10, at

 963.

 [FN143]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 54.

 [FN144]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36, s 230101 (dealing with victim's right of allocution in sentencing).

 [FN145]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36, s 320935 (dealing with admissibility of evidence of similar crimes in sex offense

 cases).

 [FN146]. Legislation, however, has also been introduced as a service to particular

 constituents. Newly enacted Federal Rule of Bankruptcy Procedure 7004(h), for

 example, requires that service of process on an insured depository institution in

 certain matters be made by certified mail, rather than first class mail. Bankruptcy

 Reform Act of 1994, supra note 36, s 114. The judiciary objected to the

 amendment on the grounds that it violated the Rules Enabling Act, was

 unnecessary, and added expense to the administration of estates. 1994 Judicial

 Conference Reports , supra note 120, at 14.

 [FN147]. Judge Weinstein has suggested that: "If a matter becomes important

 enough for detailed congressional intervention, legislation is probably desirable,

 with formal participation by both houses and the President." Weinstein , supra note

 10, at 940. It has also been suggested that rulemakers should not propose

 changes, even in matters of procedure, if the changes will have important effects on

 substantive rights. Wright, Book Review, supra note 31, at 654.

 [FN148]. Pub. L. No. 103-322, 108 Stat. 1796 (codified in scattered sections of

 42 U.S.C.).
41

 [FN149]. Violence Against Women Act, S. 15, 102d Cong., 1st Sess. s E

 (1991).

 [FN150]. H.R. Doc. No. 250, 103d Cong., 2d Sess. 5 (1994).

 [FN151]. Id.

 [FN152]. Id.

 [FN153]. Id.

 [FN154]. Id.

 [FN155]. The Supreme Court later withheld approval of the portion of the rule

 approved by the Judicial Conference that extended its reach to civil cases.

 Members of the Court were concerned that the proposed rule might violate the

 Rules Enabling Act, which forbids the enactment of rules that "abridge, enlarge or

 modify any substantive right," and might encroach on the rights of defendants in

 sexual harassment cases because it might be inconsistent with Meritor Sav. Bank

 v. Vinson, 477 U.S. 57 (1986). Letter from William H. Rehnquist, Chief Justice of

 the United States, to Judge John F. Gerry, Chairman of the Judicial Conference's

 Executive Committee (Apr. 29, 1994), reprinted in Communication from the Chief

 Justice, supra note 101, at 684. 

 Congressional conferees, however, restored the portion of the rule deleted by the

 Supreme Court, and Congress proceeded to enact revised Rule 412 in the form

 approved by the Judicial Conference. Violent Crime Control and Law

 Enforcement Act of 1994, supra note 36, s 40141.

 [FN156]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36, s 320935 (dealing with admissibility of evidence of similar crimes in sex offense

 cases).

 [FN157]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36, s 320935.

 [FN158]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36, s 320935. The evidence, civil, and criminal advisory committees met and

 considered the new rules during the 150-day statutory period. The Advisory

 Committee on the Rules of Evidence also solicited public comment on the rules,

 sending the rules to 900 evidence professors and 40 women's rights organizations.

 The overwhelming majority of judges, lawyers, law professors, and organizations
42

 responding stated their opposition to the rules, principally on the grounds that they

 contained numerous drafting problems apparently not intended by their authors and

 would permit the admission of unfairly prejudicial evidence. The committee

 received 84 responses, representing 112 individuals and 16 organizations. Of the

 total responses, 100 individuals and organizations were opposed, 10 were

 supportive, and 18 either were neutral or recommended modifications. Law

 professors were opposed to the new rules by 56 to 3. 

 The Judicial Conference formally asked Congress to reconsider its decision to

 adopt the new rules, thereby delaying their effective date for another 150 days.

 Alternatively, the Conference recommended that Congress enact substitute

 language prepared by the Advisory Committee on the Rules of Evidence that

 would not change the substance of the congressional enactment but would clarify

 drafting ambiguities and eliminate possible constitutional infirmities. Judicial

 Conference of the U.S. , Report of the Judicial Conference of the United States on

 the Admission of Character Evidence in Certain Sexual Misconduct Cases (1995).

 [FN159]. In August 1993, Senator Herb Kohl introduced S. 1404, the Sunshine

 in Litigation Act. The bill proposed amending Rule 26(c) of the Federal Rules of

 Civil Procedure to require that federal judges make particularized findings before

 issuing protective orders to ensure that public health and safety would not be

 jeopardized. S. 1404, 103d Cong, 1st Sess. (1993). No action was taken on

 Senator Kohl's legislation while the Advisory Committee on Civil Rules reviewed

 the results of a Federal Judicial Center study on protective orders. The advisory

 committee completed its work within the Rules Enabling Act process and

 transmitted proposed amendments to Rule 26(c) to the Judicial Conference for

 consideration at its March 1995 session. Judicial Conference of the U.S., Report

 of the Judicial Conference Committee on Rules of Practice and Procedure to the

 Chief Justice of the United States and Members of the Judicial Conference of the

 United States 6-8 (1995). Assuming approval by the Conference, the amendments

 would be submitted to the Supreme Court with a recommendation that they be

 approved and transmitted to Congress.

 [FN160]. Violent Crime Control and Law Enforcement Act of 1994, supra note

 36 s 40153(c) A similar approach has been followed by Congress on other

 occasions, when it has asked the Judicial Conference to report on such matters as

 the future of the federal defender program. See Civil Justice Reform Act of 1990,

 Pub. L. No. 101-650, s 318, 104 Stat. 5089; Judicial Conference of the U.S.,

 Report of the Judicial Conference of the United States on the Federal Defender

 Program (1993). Also, Congress has asked the Judicial Conference to report on

 the impact of drug activity on the federal courts. See Anti-Drug Abuse

 Amendments Act of 1988, Pub. L. No. 100-690, s 6159(b), 102 Stat. 4312;
43

 Judicial Conference of the U.S. , Report of the Judicial Conference of the United

 States to the Congress -- Impact of Drug Related Criminal Activity on the Federal

 Judiciary (1989).

 [FN161]. See H.R. Rep. No. 422 , supra note 31, at 14-15; Wright , supra note

 2, at 431-32; John P. Frank, Local Rules, 137 U. Pa. L. Rev. 2059 (1989);

 Subrin, supra note 57, at 2018, 2021. But see Steven Flanders, Local Rules in

 Federal District Courts: Usurpation, Legislation, or Information?, 14 Loy. L.A. L.

 Rev. 213, 216 (1981) (arguing that local courts' rulemaking has been

 "well-reasoned and beneficial").

 [FN162]. See Coquillette et al., supra note 57, at 62; Subrin, supra note 57, at

 2018-26.

 [FN163]. See H. Rep. No. 422 , supra note 31, at 15; Coquillette et al., supra

 note 57, at 62.

 [FN164]. See supra Part I.

 [FN165]. Committee on Rules of Practice and Procedure, Judicial Conference of

 the U.S., Local Rules Project, Part I , at 1 (1988).

 [FN166]. The Local Rules Project is under the direction of the Standing

 Committee's Reporter, Professor Daniel R. Coquillette of the Boston College Law

 School. The project director is Mary P. Squiers, Esquire.

 [FN167]. See Fed. R. App. P. 28 advisory committee's note to 1993 amendment;

 Report of Advisory Committee on Appellate Rules to the Standing Committee,

 Dec. 1, 1992, 144 F.R.D. 459 (1992) [hereinafter Appellate Rules].

 [FN168]. There is evidence, for example, that many courts are conducting

 thorough reviews of the content and numbering of their local rules. In addition,

 many courts and local rules committees have solicited assistance from the Local

 Rules Project's director, Mary P. Squiers, on how to re-number the rules and how

 to draft particular rules more precisely and coherently.

 [FN169]. H.R. Doc. No. 67, 104th Cong., 1st Sess. 3 (1995) (Bankruptcy Rule

 9029); H.R. Doc. No. 66, 104th Cong., 1st Sess. 5 (1995) (Appellate Rule 47);

 H.R. Doc. No. 65, 104th Cong., 1st Sess. 7 (1995) (Criminal Rule 57); H.R.

 Doc. No. 64, 104th Cong., 1st Sess. 6 (1995) (Civil Rule 83).
44

 [FN170]. See supra note 169.

 [FN171]. Fed. R. App. P. 47; Fed. R. Bankr. P. 9029; Fed. R. Civ. P. 83; Fed.

 R. Crim. P. 57. The amendments were approved by the Judicial Conference on

 September 24, 1994 and transmitted to the Supreme Court on November 2,

 1994. See 1994 Judicial Conference Reports , supra note 120, at 66-67.

 [FN172]. See Wright, supra note 2, at 436.

 [FN173]. 28 U.S.C. ss 471-473, 478 (Supp. V 1993).

 [FN174]. Id. s 473(a), (b). The Act emphasizes strong judicial case management

 efforts, separate procedural tracks for different categories of civil cases, and

 increased use of alternate dispute resolution techniques.

 [FN175]. See S. Rep. No. 101-416, 101st Cong., 2d Sess. 10-11 (1990).

 Professor Mullenix argues that the Civil Justice Reform Act effectively repealed the

 Rules Enabling Act and rendered impotent the federal rulemaking process that has

 traditionally relied on careful study to achieve simple and uniform national rules.

 Mullenix, supra note 10, at 379-80. The contrary view is well expressed in Robel,

 supra note 131, at 1448, 1464-70, 1473.

 [FN176]. See Carl Tobias, Civil Justice Reform and the Balkanization of Federal

 Civil Procedure, 24 Ariz. St. L.J. 1393 (1992); Article, Federal Discovery News ,

 Dec. 1994, at 4-7.

 [FN177]. Fed. R. Civ. P. 26; see Randall Samborn, Districts' Discovery Rules

 Differ, Nat'l L.J. , Nov. 14, 1994, at A1; Wright, Foreword, supra note 113, at

 10-11.

 [FN178]. The Administrative Office has contracted with the RAND Corporation

 to conduct the statutorily required study. See generally Terence Dunworth &

 James S. Kakalik, Preliminary Observations on Implementation of the Pilot

 Program of the Civil Justice Reform Act of 1990, 46 Stan. L. Rev. 1301 (1994).

 [FN179]. Civil Justice Reform Act of 1990, Pub. L. No. 101-650, sec. 105, 104

 Stat. 5089, amended by the Judicial Amendments Act of 1994, s 4, 1994

 U.S.C.C.A.N (108 Stat.) 4343.

 [FN180]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 55.
45

 [FN181]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 55.

 [FN182]. 28 U.S.C. ss 331, 2071(c) (1988 & Supp. V 1995). In March 1994,

 the Judicial Conference was asked for the first time to exercise this statutory

 oversight authority when five state attorneys general requested that the Judicial

 Conference modify or abrogate Local Rule 22 of the Ninth Circuit -- regarding the

 processing of capital cases -- asserting that the local rule was inconsistent with

 federal law. The request has been considered by the Advisory Committee on

 Appellate Rules and the Standing Committee and is still pending. Judicial

 Conference of the U.S., Report of the Judicial Conference Committee on Rules of

 Practice and Procedure to the Chief Justice of the United States and Members of

 the Judicial Conference of the United States 21-22 (Sept. 1994).

 [FN183]. 1995 Proposed Long Range Plan , supra note 5, recommendation 30

 commentary, at 55.

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