Amending the FRCP: How Did These Rules Get Here Anyway?

February 23, 2015

FCRP updateThere’s been a great deal of discussion in the legal world recently about the Judicial Conference of the United States’ proposed changes to the Federal Rules of Civil Procedure. Despite the fact that these changes will go into effect on December 1, 2015 (if they go into effect at all), the rules were released and the debate began raging back in June, 2014. This got me curious: why are the rules published so long before they’re intended to go into effect?

The Federal Rules of Civil Procedure (as well as those governing Criminal Procedure, Evidence, and Appellate Procedure) are adopted and promulgated pursuant to 28 USCA § 2072, et seq., the current iteration of the Rules Enabling Act, originally enacted in 1934.  Prior to that law, Federal cases were often governed by a queer mix of State and Federal procedure which could vary from court to court.  The Rules Enabling Act and its modern descendents reflect Congress’s preference for a uniform national system for handing Federal cases over local variation.

Under the Act, the Supreme Court has the power to adopt rules of practice and procedure, and the Judicial Conference can recommend rules to the Supreme Court.  The Judicial Conference must observe certain standard procedures for open government meetings, such as public notice of meetings and minute-taking, which are required by statute.

For a rule to go into effect in a given year, the Supreme Court must send it to Congress before May 1 of that year.  Congress then has 7 months to act if it objects to a proposed rule.  In the absence of Congressional action, the proposed rule goes into effect on December 1.

This procedure is designed to give the federal bar plenty of notice before a major rules change, and, given the depth of coverage over a year before the proposed amendments go into effect, it would seem to be working.  There’s a recommendation before the Court, but the Court and Congress could yet reject or modify the recommendation. The newly proposed rules are still at the earliest stage of their journey to become fully fledged parts of the FRCP.