Federal Rulemaking - Problems and Possibilities

• NCJ Number: 81975
• Author(s): W R Brown
• Date Published: 1981
• Length: 151 pages
• Corporate Author: Federal Judicial Ctr
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

The existing structure and process of rulemaking for the Federal courts is described, and criticisms and proposals for change are presented and critiqued.

Abstract

The procedure by which court rules are now drafted, reviewed, and promulgated was adopted after Congress imposed responsiblities for this work on the Judicial Conference in 1958. The Conference fulfills its mandate through a Standing Committee on Rules of Practice and Procedure, which reviews the work of advisory committees and in turn is reviewed by the full Conference. There are advisory committees for the civil, criminal, appellate, and bankruptcy areas. Advisory committee drafts are circulated for comment by bench and bar. The Conference normally approves the rules as submitted by the Standing Committee and then submits them to the Supreme Court. The Supreme Court is believed to review the rules at a Court conference session. Court review in recent years has usually resulted in approval, promulgation, and transmittal of the rules to Congress. Congress may permit them to take effect by taking no action for a specified period, generally 90 days. On the other hand, it may reject or amend the rules, as well as defer their effectiveness for as long as it elects. Some criticisms of the current system are that it does not provide adequate consideration and review of the rules nor allow sufficient public participation. The process is also criticized for not having adequate monitoring mechanisms and taking too much time. Many of the proposals for change respond to perceived problems arising from the Supreme Court's role as rule promulgator. Some proposals aim at protecting the Court from serious threats to its fundamental function as the final arbiter of the meaning of constitutional and statutory provisions. Other proposals intend to protect the rulemaking process from dangers that arise when the same institution is both promulgator and interpreter. A total of 305 footnotes are provided, and a time chart for the rulemaking process is appended.