10-01-03 Introduction and invitation to participate in Rulemaming by Thomas E Baker

"...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:

http://inproperinla.com/00-00-01-91-01-01-baker-thomas-e-introduction-to-federal-rule-making.pdf

69. Wright, Amendments to the Federal Rules: The Function of a Continuing Rules

Committee, 7 VAND. L. REv. 521, 555 (1954).