1. This section will review, as a matter of doctrine and history, the status and relationship of the respective powers of Congress, federal courts and the federal judiciary in the regulation of procedure, emphasizing distinctions between procedure fashioned in decisional law and that provided in court rules, between local and supervisory court rules, and between inherent power in the weak sense (the power to act in the absence of congressional authorization) and inherent power in the strong sense (the power to act in contravention of congressional prescription).

2. The section will conclude that, as a formal matter, if Congress chooses to exercise its power, it has the last word on matters of procedure, subject only to the specific limitations of the Constitution (i.e., in the Bill of Rights) and to a limitation that, although difficult to phrase precisely, prevents Congress from depriving the federal courts of powers that are necessary for them to act as such under Article III.

1. Acknowledging that any attempt to divide the history of federal procedural regulation into discrete periods will inevitably be freighted with premises or assumptions that are disputable, this section will identify three periods as useful at least for descriptive purposes, attempting to provide plausible general descriptions of the nature of the congressional role during each.

   1. 1789-1934/1938: See Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982).

   2. 1934/38-1972

      1. This period brought the long-sought delegated power to the Supreme Court to promulgate supervisory court rules for actions at law, with authority (that was exercised) to combine them with the pre-existing supervisory rules for suits in equity.

         1. Congress did not block any of the originally proposed Federal Rules of Civil Procedure or any subsequent amendments to such Rules during this period (and the Supreme Court did not declare invalid any Federal Rule, having come close to doing so in Sibbach).

      2. After the Federal Rules were effective, most previously enacted statutory procedural law was either superseded (through the REA's supersession clause) or repealed in the 1948 revision of the Judicial Code, or both, and Congress largely abstained from making new statutory procedural law.

      3. The honeymoon lasted for more than thirty years and produced subsequent grants of rulemaking authority for both criminal and civil (e.g., appellate rules) cases, as well as attendant supersession of statutory law.

   3. 1973-2003
      1. Starting with the proposed Evidence Rules in 1973, Congress exercised its power to block and/or revise proposed Federal Rules promulgated by the Court under the Enabling Act, doing so on a number of occasions thereafter. On other occasions (e.g., 1983 and 1993) Congress seriously entertained, but did not sustain, objections to the validity, wisdom or fairness of proposed Rules.

      2. Congress also, albeit infrequently, directly legislated discrete Federal Rules apart from then-current proposals promulgated under the Enabling Act.

      3. Concern in Congress about overreaching by the rulemakers and more generally about the breakdown of the Enabling Act system of allocating lawmaking responsibility prompted an effort, led by the House of Representatives, to revise that system, yielding the 1988 amendments to the Enabling Acts.

         1. Most of the formal changes related to the procedure for developing proposals within the judiciary and to the role of local rules, but the hearings and legislative history cast a broad shadow, eliciting assurances of careful attention to the Enabling Act's limitations (formally unchanged) from the Chief Justice, and evidence of the sincerity of those assurances in the work of the rulemakers when considering proposals and of the Court when interpreting Rules.

         2. The Senate defeated the House's attempt to repeal the supersession clause.

      4. Contemporaneously with the1988 amendments to the Enabling Act, with Senate rather than House initiative, Congress considered and ultimately enacted the Civil Justice Reform Act of 1990, which was in unbearable tension with some of the goals of the 1988 amendments. Congress thereby signaled not, as previously, political interest in controversial proposals with arguable substantive impact or in isolated goodies for constituents, but the capacity for political interest in the core of procedural regulation (or, as it has been called, "the heartland of procedure"). The CJRA provided a "wake-up call" to the federal judiciary (which, on one view of the 1993 amendments to the Federal Rules, had difficulty responding).

      5. The politics of the mid-1990's, including the agenda captured in the "Contract with America" and the war on crime (and criminals), brought forth legislation in which Congress prescribed substance-(or litigant-)specific procedure at variance with the Federal Rules (e.g., the Private Securities Litigation Reform Act of 1995 and the Prisoner Litigation Reform Act of 1996).

      6. Since 1996 the judiciary's system for tracking bills and legislation affecting the Federal Rules indicates that, although many bills introduced would have directly amended specific Federal Rules (albeit far more the Criminal than the Civil Rules), or changed the requirements of the Rules in specific substantive contexts, very few such proposals have been enacted.

         1. The judiciary's monitoring effort requires substantial staff time and often results in letters stating concerns from either members of the judiciary or the Director of the AO to members of Congress. Where Congress has seriously considered bills that would have consequentially altered existing procedural arrangements (i.e., the PSLRA), the judiciary's efforts have included in-person negotiations.

         2. At least one recently enacted statute (the E-Government Act of 2002, Pub. L. No. 107-347) requires the Supreme Court to promulgate rules under the REA, and more congressional mandates to engage in rulemaking are likely (if , for instance, Congress passes H.R. 975, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2003).

Note: In this section, I hope to update and refine previous work that has sought to explain the dramatic changes in Congress's attitudes towards procedural lawmaking as between the second and third periods, informing it with insights from other disciplines, in particular political science. Since my research to that end continues, this part of the outline is necessarily even more tentative than the rest.

1. The Rhetoric of Procedure and the Reality of Power in Discretion

   1. It is astonishing how long lawyers, judges, and scholars were able (or continued to try) to hide the reality of the power of procedure beneath layers of adjectives (e.g., "adjective," "neutral").

      1. Such strategies did not observe, any more than the desire to acquire and hold power observes, party lines, with the result that people as different politically as William Howard Taft and Charles Clark pursued many of the same goals with respect to the Enabling Act and the rules it authorized, most prominently the merger of law into equity and of rules into discretion.

   2. The Congress that passed the Enabling Act, unlike its predecessors, did not give the bill much (really, any) attention. It was enough (particularly in 1934) that the administration supported it.

   3. The Congress that allowed the original Federal Rules to become effective in 1938 did give the proposed Rules serious consideration, but in the absence of shared (let alone coherent) conceptions of the limits of the enterprise, and given the rulemakers' decisions both to fashion trans-substantive rules and to limit the policy choices made therein (as opposed to such choices made by judges applying them), it was difficult to evaluate claims of overreaching or independently to assess the Court's fidelity to its mandate.

      1. Then, too, Congress was fed a heavy dose of the traditional rhetoric and was assured that the Court would be zealous to correct any mistakes.

   4. There were not many amendments to the Civil Rules between 1938 and the 1960's, at least by contemporary standards; supporters represented that the Rules were the greatest thing since sliced bread, and there remained a substantial community of interests within the bar and the profession as a whole (including federal judges).

   5. With the proliferation of civil rights and other legislation in and after the 1960's, the 1966 amendments to Rule 23, and the litigation that both elicited or facilitated, the emptiness of the traditional rhetoric became hard to miss, in particular the enormous power that federal judges wielded under the banner of procedure and the substantive impact of choices they made under (or under the authority of) Federal Rules.

      1. In part as a result of the social revolution worked by the civil rights movement, and in part because of the extent and changing circumstances of competition (to which Rule 23 contributed), the legal profession became less homogeneous, and the community of interests among lawyers and between lawyers and judges shrank.

   6. Even in the absence of a shared consensus about the REA's limitations, it was impossible to miss the substantive implications of some of the policy choices required by the Federal Rules of Evidence.

   7. Thereafter, although some of the rulemakers clung to the traditional rhetoric, interested observers, including interested members of Congress, were more likely to perceive overreaching, consequential substantive effects and lack of neutrality, spurred in part by attention to the REA in the scholarly literature and by calls for and the conduct of empirical research.

2. The Rulemakers and the Rulemaking Process

   1. At some point, I believe under Chief Justice Warren Burger, the Civil Rules Committee came to be dominated by judges selected by the Chief Justice (a trend only partially halted under congressional pressure). Whatever the motivation for the change (greater agenda control? suspicion of lawyers' ability to put aside their narrow interests?), with the fragmentation of the profession has come a greater risk that lawyers' and judges' views about desirable procedural regulation would diverge (as well, of course, as of divergent views among lawyers).

      1. This risk was realized when, in response to a perceived crisis of expense and delay, judges pursued strategies that either empowered them at the expense of lawyers and their clients (sanctions and active case management) or that simply disempowered lawyers (discovery reform).

      2. Whether or not the federal judiciary can usefully be thought about as an interest group (a question I hope to pursue), lawyers clearly do constitute more than one such group. In 1983 and again in 1993, there was a widespread belief among lawyers that the rulemakers were not listening to their objections. Some of these lawyers sought relief in Congress. They can only have been encouraged on those, increasingly common, occasions of recorded disagreement about proposed Federal Rules by members of the Supreme Court.

      3. Lawyers also represent the members of other interest groups and in that capacity as well some of them have found the opportunities for seeking to exercise influence (and to earn fees) that were created by the opening up of the rulemaking process irresistible, particularly in a world in which the myth of the neutrality of procedure has been exploded.

   2. There is no necessary connection between an individual's ability as a federal judge (or rulemaker) and his or her personal political skills. For many years the federal judiciary was poorly served by some of the judges (and other rulemakers, including academics) who interacted with the public and with Congress on proposed Federal Rules. Moreover, a game theoretic perspective confirms the importance of having key rulemakers who are in tune with congressional preferences.

3. Congress and the Legislative Process

   1. For the reasons previously described, the specific experience of the Evidence Rules and the changed jurisprudential climate in general combined to make Congress aware of the potential of rulemaking choices to submerge substantive in favor of procedural policies and of procedure consequentially to affect substantive rights.

   2. William Eskridge's study of congressional overrides of Supreme Court statutory interpretations is suggestive of factors influencing the greater incidence of overrides (and of close calls) in the rulemaking area as well.

   3. Yet, although review of most of the 1970's and 1980's occasions of friction between the rulemakers and Congress as to Civil Rules proposals suggests the possibility of a partisan(or ideological) explanation, they are difficult to square with public choice or similar theories of legislative behavior.

   4. It is probably a mistake to treat Congress as a monolith. Different congressional committees have different cultures and patterns of membership, including percentage of lawyer members, as well as different attitudes toward the federal judiciary, and it is interesting that some of the legislation to which the federal judiciary has objected in recent years has come from committees other than those with which the judiciary regularly and closely works.

   5. In any event, "The Enabling Act Process" has nothing properly to do (or at least not what the judiciary thinks it has to do) with most of the substance-specific legislative procedure to which the judiciary has objected.

   6. The Civil Justice Reform Act of 1990 appears to confound the transactional model of legislation, which posits that Congress will have little interest in statutes that distribute benefits broadly (a theory under which the REA makes eminent sense so long as procedure is thought to be neutral). It is not necessary to endorse that theory in order to believe that we shall not see the CJRA's like soon again.

   7. Legislation containing substance-specific procedure is, for reasons already adumbrated, quite a different matter. The climate for ideological and interest group politics with respect to procedure today recalls the mid-1990's.

1. As remarked above, over the last decade the rulemakers have, by and large, taken seriously the Chief Justice's assurance to Congress that they would observe the Enabling Act's limitations. They have also taken seriously a number of calls, including in the judiciary's Long Range Plan, that rulemaking attend far more in the future than it has in the past to the need for and the fruits of empirical study. Both developments have helped the rulemakers keep their ambitions under control (see, e.g., the shelved proposals on duplicative class actions). But the result is a greater need for "procedural" legislation in the future and hence for closer and more frequent cooperation with Congress.

   1. Creating a system or culture in which timely and sincere consultation is accepted practice may not be easy with respect to some congressional committees, and it would not foreclose last-minute or stealth legislation, non-germane provisions smuggled into appropriation bills, and other excrescences of the contemporary legislative landscape.

2. Recognizing those needs, the federal judiciary should at last come to grips with questions about communications with members of Congress that have been asked (and answered) by Robert Katzmann and Charles Geyh. As part of that process they should also rethink the institution's response to proposed procedural legislation, particularly that which is substance-specific. Like a certain four letter word,"the Enabling Act Process" loses its force when invoked too often.