Federal Court Rules Research Guide

Just as reviewing the legislative history of a statute can aid in statutory interpretation, reviewing the legislative history of a court rule can help you interpret the rule.

To help you understand the documents you will find in researching a court rule's legislative history, this section first describes how court rules are made, then explains how to find the documents produced in the process.

Authority

The statutory authority for making federal court rules is the Rules Enabling Act, 28 U.S.C. §§ 2071-2077.

The Supreme Court derives the authority to create federal court rules of general applicability from 28 U.S.C. §§ 2072 & 2075, and exercises this authority in cooperation with the Judicial Conference of the United States. The Judicial Conference is statutorily required to, carry on a continuous study of the operation and effect of the general rules of practice and procedure. 28 U.S.C. § 331. As part of this continuing study, the Conference may recommend amendments and additions to the rules to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay.

The Standing Committee and Advisory Committees

The Judicial Conference has a Committee on Rules of Practice and Procedure, commonly referred to as just "the Standing Committee," coordinates the Conference's rulemaking activities. There are also five advisory committees on the appellate, bankruptcy, civil, criminal, and evidence rules that make recommendations for rule changes to the Standing Committee. According to the U.S. Courts website,the Standing Committee and the advisory committees are composed of federal judges, practicing lawyers, law professors, state chief justices, and representatives of the Department of Justice. Each committee has a reporter, a prominent law professor, who is responsible for coordinating the committee's agenda and drafting appropriate amendments to the rules and explanatory committee notes.

The Process

• Interested individuals, such as judges, clerks of court, lawyers, professors, government agencies, etc., make suggestions for rule changes to the appropriate advisory committee. The advisory committee drafts proposed amendments if it finds that the suggestions have merit.
• Once the advisory committee has decided to recommend a rule amendment and obtained the approval of the Standing Committee, the proposed amendments are published and distributed to the general public, the bench, and the bar for comment. The advisory committee may hold hearings at which interested parties can testify.
• At the end of the public comment period, the advisory committee reconsiders the proposed rule changes in light of the comments and testimony. If the advisory committee decides to substantially revise its proposed amendments, it may initiate another six-month comment period.
• The advisory committee settles on the proposed amendments' final form and submits them to the Standing Committee for approval. Each proposed amendment is accompanied by a separate report summarizing the public comments and advisory committee members' views on the proposed amendments.
• The Standing Committee may accept, reject, or modify the final recommendations of the advisory committee. If the Standing Committee approves the proposed amendments, it will transmit them to the Judicial Conference with a recommendation for approval, along with the advisory committee's reports and the Standing Committee's own report explaining any modifications it made. If the Standing Committee makes a substantial modification to the recommendation of the advisory committee, the proposal is returned to the advisory committee with appropriate instructions.
• The Judicial Conference considers proposed rule amendments at its September session each year. Amendments approved by the Conference are transmitted to the Supreme Court.
• The Supreme Court must approve and transmit proposed amendments to Congress by May 1 of the year in which the amendment is to take effect.
• Congress has a statutory period of at least seven months to act on rules approved by the Supreme Court. If Congress does not pass legislation to reject, modify, or defer the rules, they take effect on December 1.

U.S. Courts Home Page 

• Currently Pending Amendments:
  • Pending Rules Amendments
  • Proposed Amendments Published for Public Comment
• Records and Archives of the Rules Committees:
  • Meeting minutes of the advisory committees (coverage varies by committee, but overall 1935 - present)
  • Reports of the advisory committees and Standing Committee (coverage varies by committee, but overall 1937 - present)
  • Transcripts (2013 - present): Archived public hearing transcripts and testimony submitted during annual comment period of the Judicial Conference Committee on Rules and Practice and Procedure and the advisory committees.
  • Federal Judicial Center (FJC) Studies and Related Publications (~1995 - present): A very selective collection of Rules Committee publications, law review articles, Administrative Office publications, and FCJ publications, each collection organized by topic.
  • Archived Rules Comments (2013 - present)
  • Archived Rules Suggestions (2013 - present)
  • Agenda Books (1992 - present): The Administrative Office of the U.S. Courts archives and maintains the agenda books of the Judicial Conference Committee on Rules and Practice and Procedure and the advisory committees.
  • Special Projects of the Rules Committee: Includes information about four conferences: the Dallas Conference on Preservation and Sanctions (2011), the 2010 Civil Litigation Conference, the Mini-Conference on Waiver of Attorney-Client Privilege and Work-Product Doctrine (2006), and the Civil Rule 23 Mini-Conference (2015)
    

Records of the U.S. Judicial Conference: Committees on Rules of Practice and Procedure (KF8705 .A87 Micro, Cabinet E14): This large compilation of committee documents provides the full text of committee meeting minutes, transcripts, reports, and correspondence from 1935 through 1996. It is accompanied by a set of detailed print indexes that allow the user to find documents by committee, rule topic, or testifying/commenting individual or organization.

Drafting History of the Federal Rules of Criminal Procedure (KF9606.515 .A15 1991, also online): For researchers interested in the Federal Rules of Criminal Procedure, this publication provides a reprint of the four-volume Comments, Recommendations, and Suggestions Concerning the Proposed Rules of Criminal Procedure that was used by committee members. It also contains preliminary drafts, Supreme Court memoranda, and the final committee report.