Podium: Should Congress Decide Civil Rules?; No, Not a Subject to Wheel 'N Deal

Abstract

Commentary and analysis of the federal rulemaking process, with discussion of the allocation of rulemaking authority shared by the federal judiciary and Congress. The article explores the question concerning which branch of government is better or more appropriately suited to develop and issue new rules or amendments to existing rules. This question is explored against the backdrop of pending proposed amendments to Federal Rule of Civil Procedure 11 – the federal court sanctioning provision – and a wholesale amendment of the federal rules relating to discovery during civil litigation. The article discusses pending proposals formulated by the judiciary, and counter-proposals in pending legislation. The article comments on fifty years of experience with federal rulemaking.

Keywords: Federal Rules of Civil Procedure, rulemaking, allocation of rulemaking, Federal Rule of Civil Procedure 11