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The Criminal Rules Enabling Act


Max Minzner


University of New Mexico School of Law

July 10, 2012

46 University of Richmond Law Review 1047 (2012)

Abstract:     
The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA.

This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.

Number of Pages in PDF File: 65

Keywords: Rules Enabling Act, Civil Procedure, Criminal Procedure

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Date posted: July 11, 2012  

Suggested Citation

Minzner, Max, The Criminal Rules Enabling Act (July 10, 2012). 46 University of Richmond Law Review 1047 (2012). Available at SSRN: http://ssrn.com/abstract=2103421

Contact Information

Max Minzner (Contact Author)
University of New Mexico School of Law ( email )
1117 Stanford, N.E.
Albuquerque, NM 87131
United States
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