"...the Federal Rules of Civil Procedure will continue to be the outstanding system of procedure in the world."
AN INTRODUCTION TO FEDERAL COURT
RULEMAKING PROCEDURE
by Thomas E. Baker*
Toward the end of September 1990 at a closed meeting in
Washington, D.C., the Judicial Conference of the United States
passed on a substantial set of proposed amendments to the rules of
practice and procedure of the federal courts. The new appellate rules
authorized local circuit rules on electronic filing, required a jurisdictional
statement in the appellant's brief and eliminated some
inconsistencies in the notice rules for admiralty appeals.3 The new
civil rules related to pretrial scheduling orders, discovery in international
litigation, claims of privilege, subpoenas of nonparties,
alternate jurors, the standard for entry of judgment as a matter of
law, procedures for special masters and substitution for a judge
who is unable to continue. Most important, a completely redrafted
Federal Rule of Civil Procedure 4: (1) authorized service as provided
by the state in which a defendant is served, as well as the forum
state; (2) permitted nationwide personal jurisdiction in federal question
cases; (3) emphasized and encouraged waivers of actual service;
and (4) clarified and economized service of process by and on the
federal government, The most substantial changes occurred in bank-
ruptcy procedure, where the rules have been redrafted in wholesale.
These reforms were made necessary, in large part, by far-reaching
recent legislation: the Bankruptcy Judges, United States Trustees,
and Family Farmer Bankruptcy Act of 198613 and the Retiree Benefits
Bankruptcy Protection Act of 1988,J4 Even the Official Bankruptcy
Forms have been redrafted.
...
V. AN INVITATION
My last entreaty addressed to my lawyer-reader is to become
involved in the rulemaking procedure. My principal reason for writing
this article is to demystify the procedure so that attorneys will accept
this invitation. Suggestions and recommendations on any of the
federal rules may be sent to:
Mr. James E. Macklin, Jr.
Secretary
Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
Washington, D.C. 20544
The standard procedure is to acknowledge in writing such suggestions
and recommendations and to refer them to the appropriate Advisory
Committee.
Lawyers should take the time to read, study and respond to the
proposed rules during the commentary period. Urge the appropriate
committee of your bar associations or take it upon yourself to appear
and testify at the public hearings. Members of the bar, obviously,
have an important stake in changes in federal procedure and, necessarily,
bear a public responsibility to contribute their expertise.
In closing, I cannot improve on the exhortation of a young,
somewhat hyperbolic procedure professor, who in 1954 was just
beginning his own involvement in rulemaking: "If the careful work
of the Committee is followed by real participation and informed
comment from the bar, the amendments finally adopted should ensure
that the Federal Rules of Civil Procedure will continue to be the
outstanding system of procedure in the world."[69]
____________
* Professor of Law, Texas Tech University; B.S. cum laude, Florida State University,
1974; J.D. with high honors, University of Florida, 1977. By appointment of Chief Justice
William H. Rehnquist, the author serves on the Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States. The views expressed herein are those of the
author alone. A previous version of this article appeared in the Texas Lawyer. See Baker, An
Invitation to Get Involved, Texas Lawyer, Sept. 3, 1990, at 22, col. I.
The full article was posted at:
69. Wright, Amendments to the Federal Rules: The Function of a Continuing Rules
Committee, 7 VAND. L. REv. 521, 555 (1954).
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