SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, OF THE COMMITTEE ON THE JUDICIARY NINETY-NINTH CONGRESS LIBRARY OF DOCUMEN Printed for the use of the Committee on the Judiciary GOVT 48-930 O U.S. GOVERNMENT PRINTING OFFICE WASHINGTON: 1985 JACK BROOKS, Texas COMMITTEE ON THE JUDICIARY PETER W. RODINO, JR., New Jersey, Chairman ROBERT W. KASTENMEIER, Wisconsin DON EDWARDS, California BARNEY FRANK, Massachusetts FREDERICK C. BOUCHER, Virginia HARLEY O. STAGGERS, JR., West Virginia JOHN BRYANT, Texas HAMILTON FISH, JR., New York F. JAMES SENSENBRENNER, JR., BILL MCCOLLUM, Florida WILLIAM E. DANNEMEYER, California PATRICK L. SWINDALL, Georgia M. ELAINE MIELKE, General Counsel GARNER J. CLINE, Staff Director ALAN F. COFFEY, Jr., Associate Counsel SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE Page CONTENTS WITNESSES Prepared statement with attachments... Rothstein, Paul, professor, chairman of the rules committee, American Bar APPENDIXES A. American Bar Association policy on the Rules Enabling Act... APPENDIX 1. BILLS AND BACKGROUND INFORMATION In re: Testimony of the Alliance for Justice on the 1984 proposal to amend rule 68, before the Judicial Conference Advisory Committee on Civil Rules APPENDIX 2. CORRESPONDENCE Letter from Hon. D. Lowell Jensen, Acting Deputy Attorney General to Hon. Edward T. Gignoux, chairman, Committee on Rules of Practice and Proce- Letter from Hon. D. Lowell Jensen, Acting Deputy Attorney General to Hon. Edward T. Gignoux, chairman, Committee on Rules of Practice and Proce- Letter from Nan Aron, Alliance for Justice, Laura Macklin, Institute for Public Representation and Judith Resnick, Dennis E. Curtis, and William Genego, University of Southern California Law School to Hon. Robert W. Letter from Nan Aron, director, Alliance for Justice to Joseph F. Spaniol, Jr., secretary, Standing Committee on Rules of Practice and Procedure, with Letter from Nan Aron, Alliance for Justice; Laura Macklin, Institute for Public Representation; and Judith Resnick, Dennis Curtis, and William Genego, University of Southern California Law School to Hon. Robert W. Letter from Edward T. Gignoux, Chairman, Committee on Rules of Practice Letter from Hon. Robert W. Kastenmeier to Hon. Edward T. Gignoux, Chair- man, Committee on Rules of Practice and Procedure of the Judicial Confer- Letter from Hon. Edward T. Gignoux, Chairman, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Letter from E. Richard Larson, Burt Neuborne, and Morton Halperin, Ameri- Letter from Stephen B. Burbank, professor, University of Michigan Law School to David Beier, Esq., Subcommittee on Courts, Civil Liberties and APPENDIX 3. ARTICLES 276 RULES ENABLING ACT OF 1985 THURSDAY, JUNE 6, 1985 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE, COMMITTEE ON THE JUDICIARY, The subcommittee met at 2:12 p.m., in room 2226, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Hyde, Kindness and Swindall. Staff present: David W. Beier, counsel; Joseph Wolfe, associate counsel; and Audrey Marcus, clerk. Mr. KASTENMEIER. The subcommittee will come to order. This afternoon the subcommittee will conduct hearings on the Rules Enabling Act, H.R. 2633. Last Congress we held hearings on H.R. 4144, the bill to reform the Rules Enabling Act process. The subcommittee marked up that bill and ordered a clean bill reported favorably to the full committee but did not pursue the legislation further. The purpose of this afternoon's hearing is to examine the new bill, H.R. 2633. This bill very similar to the final bill processed last session, except for one major respect: This bill provides no supersession provision. Instead, H.R. 2633 provides that the Supreme Court can no longer prescribe general rules of practice and procedure that abridge, enlarge or modify any substantive right or supercede any provision of the U.S. law. Under current law general rules of practice and procedure promulgated by the Supreme Court supercede all laws in conflict with such rules. Today the subcommittee will hear from two distinguished witnesses, Prof. Stephen Burbank, associate professor and associate dean, University of Pennsylvania Law School, and Prof. Paul Rothstein, chairperson, ABA Criminal Justice Section's Committee on Rules of Procedure and Evidence. Today's hearing will focus on the process by which the Federal judiciary and the Congress promulgate Federal rules of practice and procedure. Under current Federal law, as well as under the proposed bill, rules developed by the judiciary will have the full force and effect of law. Existing rules govern class action determinations, set the prerequisites for the issuance of injunctions and other procedural matters that vitally affect the property and rights of citizens. Thu there is little question that these procedural rules are importar |