May 22, 2020
Congress, the Judiciary, and Civil and Criminal Procedure
Two sets of authorities govern proceedings in federal court:
substantial discretion to modify claim-processing rules, but
substantive laws create certain legal rights or impose duties,
may not alter or waive jurisdictional rules. Those rules may
while procedural laws control the way courts enforce those
only be changed by amending the relevant authority.
substantive rights or duties. While many are aware of
Congress’s role in enacting and the courts’ role in
The Constitution, federal statutes, and procedural rules
interpreting substantive laws, casual observers may be less
promulgated under the Rules Enabling Act each control
conscious of the procedural rules that apply in federal
aspects of federal judicial procedure, and multiple sources
litigation. Nonetheless, the various procedures governing
may govern related matters. For instance, with regard to
federal civil and criminal cases are important. Indeed, in
criminal jury trials, the Sixth Amendment broadly protects
some instances, a claim may succeed or fail based on a
the right of a criminal defendant to a jury trial. At the same
party’s compliance with the required procedures.
time, various statutory provisions within Title 28 of the
U.S. Code govern matters including juror qualifications and
Congress enjoys ample authority to establish and structure
jury selection. Federal Rule of Criminal Procedure 23
lower federal courts. And, as the Supreme Court has stated,
imposes additional requirements related to the exact size of
“the constitutional provision for a federal court system
a jury and the process by which a defendant can waive the
(augmented by the Necessary and Proper Clause) carries
right to a jury trial.
with it congressional power to make rules governing the
practice and pleading in those courts.” However,
The primary rules governing federal court procedures are
recognizing that the courts themselves possess significant
those promulgated under the Rules Enabling Act. These
expertise in crafting such rules, Congress passed the Rules
rules can overlap in scope, so more than one set of rules
Enabling Act, codified at Sections 2071-2077 of Title 28 of
may apply in a given proceeding. Specifically, the Federal
the U.S. Code. The Rules Enabling Act grants the Supreme
Rules of Civil Procedure govern civil cases in the trial-level
Court primary authority for creating and amending federal
federal district courts. The Federal Rules of Criminal
procedural rules, but also imposes congressional oversight
Procedure apply to criminal proceedings both in district
of the rulemaking process. This In Focus summarizes the
court and on appeal. The Federal Rules of Appellate
authorities that govern federal judicial procedure, outlines
Procedure govern proceedings in the U.S. Courts of
the rulemaking process under the Rules Enabling Act, and
Appeals, including appeals from the district courts in civil,
presents related considerations for Congress.
criminal, and bankruptcy cases; appeals from the Tax
Court; and petitions for judicial review of agency action.
Overview of Federal Procedural Rules
The Federal Rules of Evidence govern evidentiary matters
Procedural rules govern all aspects of federal litigation,
in all federal courts. Specialized Federal Rules of
from the initiation of a case, to factual discovery, to briefing
Bankruptcy Procedure apply in bankruptcy proceedings.
and oral argument, to final judgment and any appeal. For
The Supreme Court has also adopted specific rules for
instance, procedural rules impose standards for pleadings
practice before the high court.
the parties file, grand jury proceedings and civil and
criminal jury trials, and testimony and other evidentiary
The Supreme Court has also recognized that courts have
matters. Procedural rules aim to provide structure to
inherent authority to supervise judicial proceedings, as long
litigation, limit cost and delay, and ensure that all
as the exercise of such authority does not conflict with
appropriate parties can participate fully and fairly in judicial
procedural rules or statutes. Thus, in addition to other
proceedings. As Federal Rule of Civil Procedure 1 explains,
procedural laws, many lower federal courts issue their own
the rules “should be construed, administered, and employed
local rules of procedure. Moreover, individual judges or
by the court and the parties to secure the just, speedy, and
panels of judges have the authority to establish other
inexpensive determination of every action and proceeding.”
procedures. Judges may modify or supplement procedural
rules on a case-by-case basis, or may issue standing orders
Procedural rules may fall into one of two categories:
setting procedures that generally apply in their cases.
jurisdictional rules and claim-processing rules. As the
Supreme Court has explained, jurisdictional rules strictly
The Rules Enabling Act
limit “a court’s adjudicatory authority”—that is, the power
Congress enacted the Rules Enabling Act in 1934 to
of the court to consider a given case. As an example, time
streamline federal judicial procedure. At that time, separate
limits to appeal or petition the Supreme Court to hear a case
rules governed civil proceedings at law (e.g., claims for
are often interpreted to be jurisdictional. Claim-processing
money damages) and proceedings in equity (e.g., claims for
rules, by contrast, “seek to promote the orderly progress of
injunctive relief). Proceedings in equity were subject to the
litigation by requiring that the parties take certain
Federal Equity Rules, which applied nationwide. However,
procedural steps at certain specified times.” Judges possess
under a statute known as the Conformity Act, the
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Congress, the Judiciary, and Civil and Criminal Procedure
procedural rules of the state in which each federal court sat
do so every May in response to the Supreme Court’s
governed proceedings at law.
proposals. One issue that has attracted congressional
attention in recent years is class actions under Federal Rule
The Rules Enabling Act paved the way for the federal
of Civil Procedure 23. Some commentators contend that
courts to dispense with the formal division between
class actions can economize litigation and encourage
proceedings in law and equity and created a process where
plaintiffs to pursue socially desirable lawsuits; others object
the courts could enact uniform rules for federal judicial
that class actions may encourage costly, meritless, or
proceedings. As currently codified, the Rules Enabling Act
abusive suits. Thus, some proposals seek to facilitate class
authorizes the Supreme Court to “prescribe general rules of
actions by reducing obstacles plaintiffs may face under
practice and procedure and rules of evidence for cases in
Rule 23, while others seek to limit the availability of class-
the United States district courts . . . and courts of appeals.”
based relief.
Such procedural rules may not “abridge, enlarge or modify
Another topic of debate has been the federal district courts’
any substantive right.” The Rules Enabling Act requires the
increased issuance of nationwide injunctions (also known
Supreme Court to transmit any proposed amendment to the
as national injunctions or universal injunctions). A
rules to Congress no later than May 1 of the year in which
nationwide injunction is defined not by its geographic scope
such amendment is slated to take effect. Amendments take
but by the parties it affects: such an injunction prevents the
effect automatically unless Congress enacts legislation to
federal government from enforcing a statute, regulation, or
reject, modify, or delay a proposed change. The Rules
other policy against any person, including persons who are
Enabling Act also empowers the Supreme Court to create
not parties to the suit. Opponents of nationwide injunctions,
its own procedural rules, but those rules need not be
among other concerns, argue that a single district court
submitted to Congress before they take effect.
should not have the power to halt a federal policy
The Supreme Court adopted the first Federal Rules of Civil
nationwide. They also assert that nationwide injunctions
Procedure under the Rules Enabling Act in 1937, and
improperly usurp the role of Rule 23 class actions.
Congress allowed those rules to take effect without
Defenders of nationwide injunctions contend that such
modification in 1938. The rules abolished the procedural
injunctions prevent harm and promote legal stability by
distinction between proceedings in law and in equity, with
blocking the implementation of illegal policies that are
Federal Rule of Civil Procedure 2 providing: “There shall
likely to be struck down. They also assert that such
be one form of action to be known as ‘civil action.’” (Later
injunctions may be necessary to secure complete relief for
amendments changed the wording, but not the substance, of
the parties to a suit. No current federal procedural rule
that provision.) The Supreme Court later adopted the
specifically addresses nationwide injunctions. However,
Federal Rules of Criminal Procedure in 1944 and the
proposals before the 116th Congress would allow direct
Federal Rules of Appellate Procedure in 1967.
appeal of nationwide injunctions to the Supreme Court or
curtail the ability of federal district courts to issue such
In 1972, the Supreme Court first adopted the Federal Rules
injunctions. While Congress could pass legislation related
of Evidence. However, in the first and perhaps most notable
to nationwide injunctions, the Supreme Court may also
exercise of its authority to oversee judicial rulemaking,
weigh in on the issue. Several justices have recently
Congress passed legislation blocking the rules from taking
discussed the practice in concurrence or dissent, and the
effect. In 1975, Congress instead enacted new Federal
Court is currently considering the propriety of one
Rules of Evidence legislatively. The congressionally
nationwide injunction in Trump v. Pennsylvania.
enacted rules were based on the rules adopted by the
Supreme Court but contained significant modifications,
Another area of interest for recent Congresses has been
particularly with respect to evidentiary privileges. The same
Federal Rule of Civil Procedure 11, which allows courts to
legislation provided that any rules amendment “creating,
impose sanctions for filing frivolous or abusive pleadings.
abolishing, or modifying a privilege shall have no force or
A proposal in the 115th Congress would have expanded the
effect unless it shall be approved by act of Congress.” Since
available sanctions to “improve attorney accountability.”
that time, Congress has periodically exercised its authority
Another proposal in the 114th Congress would have
to modify procedural rules that the Supreme Court adopted
amended the U.S. Code to create a special motion to
for the lower federal courts under the Rules Enabling Act.
dismiss strategic lawsuits against public participation
(SLAPPs)—often-frivolous lawsuits intended to deter
While the Supreme Court is ultimately responsible for
speech on issues of public concern.
adopting new procedural rules and transmitting them to
Congress, most amendments to the rules originate from
In the realm of criminal procedure, one area of recent
standing committees of the Judicial Conference of the
concern is Federal Rule of Criminal Procedure 6(e), which
United States, the national policymaking body for the
prohibits the disclosure of federal grand jury matters,
federal courts. The standing committees propose
subject to certain exceptions. The federal appellate courts
amendments, solicit public comments, and then submit the
have split on whether courts possess “inherent authority” to
amendments to the Judicial Conference’s Committee on
authorize disclosure of grand jury materials when none of
Rules of Practice and Procedure. Any amendments
the textual Rule 6(e) exceptions applies. As with other
approved by that committee and the Judicial Conference are
procedural rules, Congress can resolve this ambiguity
then transmitted to the Supreme Court for adoption.
through legislation.
Considerations for Congress
Joanna R. Lampe, Legislative Attorney
Congress possesses substantial authority to dictate the
procedures of the federal courts, and has the opportunity to
IF11557
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Congress, the Judiciary, and Civil and Criminal Procedure


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