The paradox of delegation: interpreting the Federal Rules of Civil Procedure.

Author:Struve, Catherine T.


Distinctions between the functions of the legislative and judicial branches are a staple of debates over statutory interpretation. To some, the fact that federal judges have no vote in the legislative process supports the argument that a court should implement a statute's text even when the court's policy inclinations counsel otherwise. In the view of others, courts can complement Congress's work, for instance by updating obsolete statutes that remain on the books through congressional inattention or inertia. In such discussions, the question of a court's authority--or lack thereof--to alter a statutory text through interpretation implicates a familiar problem of political theory: the scope of the judicial power and its relation to the legislative power.

Far less attention has been given, however, to courts' interpretation of texts crafted by the judicial branch itself. Pursuant to congressional delegation of authority, the federal judiciary has promulgated various sets of rules governing civil, criminal, appellate, bankruptcy and habeas practice. Although some have discussed the implications of this delegation for the interpretation of the Federal Rules of Evidence, (1) few scholars have addressed the interpretation of other sets of rules, such as the Federal Rules of Civil Procedure. (2) This omission is notable because many aspects of the Civil Rules have a wider and more direct effect on judicial power than do the Rules of Evidence. Moreover, those who have addressed the interpretation of the Civil Rules tend to take as a given that, because Congress has delegated rulemaking power to the judiciary, the courts should be able freely to interpret, and alter, the resulting Rules. Thus, the two most extensive scholarly discussions to date on the subject of the Civil Rules argue that the Supreme Court's role in promulgating the Rules empowers it to use a more dynamic approach in interpreting them. (3) For example, Karen Nelson Moore argues that "Congress has ... delegated to the Court rulemaking power, and it is not inconsistent to imply that the Court has greater power to interpret Rules than it does to interpret statutes"; accordingly, Judge Moore maintains, the Court should consider itself free to play a "formative role" in "develop[ing]" the Rules in light of its views of purpose and policy. (4) A similar assumption appears to have influenced the behavior of some lower courts. For example, as discussed below, Judges Posner, Easterbrook, and others engaged in a striking judicial amendment of the 1983 version of Rule 11, with dramatic implications for the conduct of litigation in the Seventh Circuit.

Although the view described above may appear to be a truism, I shall argue that--paradoxically--Congress's delegation of rulemaking authority should constrain, rather than liberate, courts' interpretation of the Rules. I begin, in Part I, with a discussion of the rulemaking process. Under the current structure, an amendment cannot become law unless it receives the support of several decision-making bodies, including the Supreme Court, and unless Congress takes no action (during a specified period) to prevent the amendment from going into effect. The enabling legislation ensures that lower court judges and members of the public are represented in some of the decisionmaking bodies, mandates public access to the rulemaking meetings, and requires that proposed amendments be accompanied by explanatory notes. The public receives an opportunity to comment on proposed amendments, and the proposals are sometimes modified in response to public input. In Part II, I argue that these features of the rulemaking process constrain any subsequent interpretation of the Rules: the terms of the delegation make clear that alterations to the Rules should undergo the process specified in the Enabling Act, rather than taking effect through judicial flat in the course of litigation.

Of course, my arguments against judicial "alteration" of the Rules are not meant to suggest that the Rules will in all instances have a determinate meaning that is evident across time and to all interpreters. Where appropriate interpretive guides define a Rule's meaning, however, I contend that judges should adhere to that definition. In Part III, I discuss two possible interpretive guides: the Enabling Act's scope restriction and the Advisory Committee Notes ("Notes"). The Enabling Act prohibits the Rules from abridging, enlarging, or modifying substantive rights; the Court, however, has never enforced this restriction directly by invalidating a Rule. Instead, the Court gives the Rules a presumption of validity, but construes them so as to avoid some of the resulting Enabling Act problems. This avoidance canon, in its weak form, can help guide the Court's choice between two otherwise permissible interpretations of a Rule. I argue, however, that the Court's application of the avoidance canon in its strong form--to revise a Rule in the face of its text and Note--cannot be justified in light of the Enabling Act framework. That framework also underpins my assessment of the Court's approach to the Advisory Committee Notes. Although the Court repeatedly makes use of the Notes, as yet it has been unwilling to concede that it might be bound by them. After reviewing the Court's treatment of the Notes and comparing the Court's deference to the commentary to the United States Sentencing Guidelines, and to agency interpretations of legislative rules, I conclude that the Court should accord the Notes authoritative effect.

To illustrate these arguments, Parts II and III consider in some detail several aspects of the interpretation and amendment of Rule 11 over the past two decades. These examples, I argue, demonstrate the difficulties with judicial claims to latitude in interpreting the Rules and suggest that my proposed approach would help to prevent courts from unduly enlarging the scope of their interpretive powers.


    The rules enabling legislation, in its present form, imposes significant procedural requirements on the promulgation of a Rule or amendment. This Part gives an overview of the current process and highlights five key features: the requirement of approval by multiple bodies; the representation (within the decision-making structure) of several different constituencies; the opportunity for public notice and comment; the use of explanatory Notes to inform the consideration of a proposed amendment; and the report-and-wait period for congressional review. In each of these respects, Congress increasingly has placed statutory constraints on the Supreme Court's rulemaking discretion. I will argue in Parts II and III that these constraints place corresponding restrictions on the Court's ability to amend the resulting Rules through interpretation.

    1. Overview of the Current Process

      A proposed new Rule, or a proposed amendment to an existing Rule, undergoes at least seven stages of formal comment and review, in a process involving five separate institutions: the Advisory Committee on Civil Rules, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference of the United States, the Supreme Court, and Congress. The normal procedure is as follows. Proposed changes--which may be suggested by anyone, including judges, practitioners, academics, and interested members of the public--are analyzed by the Advisory Committee Reporter, who submits the suggestions to the Advisory Committee along with a recommendation for disposition. The Committee (at its next biannual meeting) then considers whether to accept, reject, or defer action on each suggestion. If the Committee accepts the suggestion, it asks the Reporter to prepare a proposed draft amendment and an explanatory note. The Advisory Committee then votes on the proposed amendment and its Note, and (if it approves) seeks permission from the Standing Committee to publish the proposal. (5) Once permission is received, the proposed amendment and Note are circulated for public comment. Following the comment period, the Advisory Committee reconsiders the proposal in light of the public's input. (6) Once the Advisory Committee finally approves the proposed amendment and Note, it submits them to the Standing Committee. If the Standing Committee approves the proposal without substantial changes, it forwards the proposed amendment and Note to the Judicial Conference. (7) Proposals forwarded by the Standing Committee are considered by the Judicial Conference once a year; the Conference, if it approves a proposal, transmits it to the Supreme Court. If the Supreme Court, in turn, approves the proposal, the Chief Justice forwards the amendment's text and Note to Congress by May 1 of the year in which the amendment is to take effect. If Congress takes no contrary action, the proposed amendment becomes effective on December 1.

    2. Multiple Decision Makers

      The process did not always involve so many stages of review. The original delegation, in the Rules Enabling Act of 1934, identified only two decision makers: the Court (which was to promulgate the Rules) and--implicitly--Congress (which was to have an opportunity to prevent the Rules from taking effect). Congress added a further layer in 1958 (when it directed the Judicial Conference to consider proposed changes to the Rules) and formally mandated two more layers in 1988 (when it required the involvement of the Standing Committee and set rules for the composition of any Advisory Committees). The history thus discloses a trend away from unilateral Supreme Court decision making and toward a process that includes multiple gatekeepers.

      The Rules Enabling Act of 1934 authorized the Supreme Court to prescribe general rules for civil practice and procedure in the federal district courts, so long as the Rules did not "abridge, enlarge, [or] modify the substantive rights of any litigant." (8) The Act said little concerning...

To continue reading