Promulgating Procedural Rules For the United States District Courts and Courts of Appeals Page: 2 of 4
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abrogated by circuit judicial councils,2 while the Judicial Conference of the United States3
may modify or abrogate rules prescribed by courts other than the Supreme Court.4
For more than 65 years, by virtue of the authority granted in several enabling acts,
Congress has authorized the Supreme Court of the United States to promulgate rules of
procedure for the federal district courts and courts of appeals. It has provided that
"[s]uch rules shall not abridge, enlarge or modify any substantive right. All laws in
conflict with such rules shall be of no further force or effect after such rules have taken
effect."6 The long standing practice of having committees of the Judicial Conference
review proposed rule changes has been statutorily recognized albeit with a requirement
that the meetings generally be open to the public.7 The committees are composed of
"members of the bench and the professional bar, and trial and appellate judges."
The amendatory process begins with a suggestion for a change, addition or deletion
to the rules made, in writing, to the Secretary of the Judicial Conference. The suggestion
is then forwarded to the Chair of the Standing Committee on Rules of Practice and
Procedure and the Chair of the appropriate advisory committee of which there are five -
one each for appellate rules, bankruptcy rules, civil rules, criminal rules, and evidence
2 Each judicial circuit has a circuit council consisting of the chief judge, who presides, and
an equal number of circuit and district judges of the circuit as determined by vote of all judges
in the circuit. The council's principal statutory duties are to: make necessary and appropriate
orders for the effective and expeditious administration of justice within the circuit; make or
amend general orders relating to practice and procedure within the circuit; periodically review
rules promulgated by the circuit's district courts and amend or abrogate the rules as necessary;
and to appoint, and assign duties to, a circuit executive who shall be subject to supervision by the
chief judge of the circuit.
3 The Conference, established in 1922, is the policy making body of the federal judiciary
with the Chief Justice as its chairman and membership composed of the chief judge of each
circuit, the chief judge of the Court of International Trade, and a district judge from each circuit.
28 U.S.C. 331. Its principal statutory duties are to: survey conditions of business in the federal
courts so judges may be reassigned according to need; submit suggestions to the federal courts
for purposes of uniformity and expedition of business; and to conduct a continuous study of
federal judicial practices and procedure for the improvement of the administration of justice. Id.
4 28 U.S.C. 2071.
s Beginning with the Act of February 24, 1933 [procedure after verdict], Congress
authorized the Court to promulgate rules of procedure. Other authorizing Acts were those of:
June 19, 1934 [rules of civil procedure]; June 29, 1940 [procedure to and including verdict];
October 9, 1940 [procedure for and appeal from trial by U.S. magistrates]; October 3, 1964
[bankruptcy rules]; and January 2, 1975 [rules of evidence]. Except for the authority to
promulgate the bankruptcy rules, these various authorities were combined into one statute, 28
U.S.C. 2072, by Pub. L. 100-702, Act of November 19, 1988, 102 Stat. 4648, eff. December
1988. Authority to promulgate bankruptcy rules remains in a separate statute, 28 U.S.C. 2075.
6 28 U.S.C. 2072.
7 Pub. L. 100-702, Act of November 19, 1988, codified at 28 U.S.C. 2073. There had
been instances where rules had been promulgated with little or no notice to the bar or public. See
David D. Siegel, Commentary: The Method for Prescribing the General Rules, following 28
U.S.C.A. 2073 (1994).
8 28 U.S.C. 2073.
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Morgan, P. L. Promulgating Procedural Rules For the United States District Courts and Courts of Appeals, report, March 26, 1998; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc822619/m1/2/: accessed May 25, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.