Working Paper No. 07-33:
Postponing the 2007 'Restyling' Amendments to the Federal Rules of Civil Procedure: A Letter to Members of the Judiciary Committees of the House and Senate
Date Posted: 2007
I write to urge the Members of the House and the Senate to enact legislation postponing the effectiveness of pending amendments to the Federal Rules of Civil Procedure. Without intervening Congressional action, these amendments will take effect on December 1 of this year pursuant to 28 U.S.C. — 2074(a). I recognize that this is an extraordinary request, but this year's pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation — what one of the proponents calls "clarity without change" — that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.
There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes. For these reasons, the Congress should provide itself the opportunity to study these proposed rules — and the process and concepts that produced them — before they take effect.