Federal Rules of Civil Procedure

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Article I of the Constitution empowers Congress to "constitute" lower federal courts and thus, by conventional assumption, to regulate practice and procedure in the cases heard in those courts. When the lower federal courts were first created in 1789, Congress enacted a law, known as the Conformity Act, that required each federal trial court to follow, in civil actions at law, the procedural rules of the state in which it was situated. By contrast, Congress directed the Supreme Court to promulgate federal procedures for federal admiralty and equity cases respectively.

Under the Conformity Act, hypertechnical and arbitrary state procedures hampered the federal courts. Also, uniform procedures were not available for administration of federal law nationwide under the general federal question jurisdiction first conferred on the federal courts in 1875. Finally, in 1934, Congress adopted the Rules Enabling Act, which authorized the Supreme Court to promulgate federal procedural rules, subject to a congressional veto. Both Congress's power to delegate this authority and the Supreme Court's power to exercise it, consistent with the case or controversy requirement of Article III, have been upheld.

In accordance with the Act, the Supreme Court issued the Federal Rules of Civil Procedure in 1938. Congress declined to veto them. The new rules combined law and equity into a single form of action while preserving the seventh amendment right to trial by jury on any issue that would have been so tried before the merger. While they incorporated state law with respect to some matters, such as provisional remedies, the rules also made important innovations, such as simplified pleading, liberal joinder of claims and parties, and greater emphasis on pretrial discovery of facts. Many state procedures have come to resemble the Federal Rules. And the new joinder rules have resulted in enlargement of the definition of a "case" for purposes of determining ancillary and pendent jurisdictionin the federal courts. in 1966, admiralty actions were made subject to the federal rules of civil procedure, as amended to retain a few specialized rules for suits designated as admiralty actions in the pleadings.

Special constitutional problems have arisen when the Federal Rules have been employed in diversity actions. Congress and the federal courts do not have general substantive lawmaking power over cases simply because they are within the diversity jurisdiction. Thus, when a Federal Rule of Civil Procedure differs from the procedural rule that would be applied in state court, and the difference in rules could affect the outcome of the case, the question arises whether the Federal Rule exceeds federal lawmaking authority and impermissibly intrudes on reserved state power. In Hanna v. Plumer (1963) the Supreme Court held that so long as a rule is "rationally capable of classification" as procedural, it is an appropriate subject of legislation under Congress's Article I power to create and regulate the lower federal courts, even though the rule may also affect substantive rights. It is unlikely that the Supreme Court, which promulgates the rules of civil procedure, would decide that those rules are not rationally classifiable as "procedural."

Carole E. Goldberg -A mbrose


Wright, C. 1976 Federal Courts, 3rd ed. St. Paul, Minn.: West Publishing Co.

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Federal Rules of Civil Procedure

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Federal Rules of Civil Procedure