28 U.S. Code § 2071 - Rule-making power generally
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(a) The Supreme Court and all courts established by Act of Congress may from time to time prescribe rules for the conduct of their business. Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed under section 2072 of this title.
(b) Any rule prescribed by a court, other than the Supreme Court, under subsection (a) shall be prescribed only after giving appropriate public notice and an opportunity for comment. Such rule shall take effect upon the date specified by the prescribing court and shall have such effect on pending proceedings as the prescribing court may order.
(1) A rule of a district court prescribed under subsection (a) shall remain in effect unless modified or abrogated by the judicial council of the relevant circuit.
(d) Copies of rules prescribed under subsection (a) by a district court shall be furnished to the judicial council, and copies of all rules prescribed by a court other than the Supreme Court under subsection (a) shall be furnished to the Director of the Administrative Office of the United States Courts and made available to the public.
(e) If the prescribing court determines that there is an immediate need for a rule, such court may proceed under this section without public notice and opportunity for comment, but such court shall promptly thereafter afford such notice and opportunity for comment.
Source(June 25, 1948, ch. 646, 62 Stat. 961; May 24, 1949, ch. 139, § 102,63 Stat. 104; Pub. L. 100–702, title IV, § 403(a)(1),Nov. 19, 1988, 102 Stat. 4650.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., §§ 219, 263, 296, 307, 723, 731, and 761, andsection 1111 of title 26, U.S.C., 1940 ed., Internal Revenue Code (R.S. §§ 913, 918; Mar. 3, 1887, ch. 359, § 4,24 Stat. 506; Mar. 3, 1911, ch. 231, §§ 122, 157, 194, 291, 297,36 Stat. 1132, 1139, 1145, 1167, 1168; Mar. 3, 1911, ch. 231, § 187(a), as added Oct. 10, 1940, ch. 843, § 1,54 Stat. 1101; Feb. 13, 1925, ch. 229, § 13,43 Stat. 941; Mar. 2, 1929, ch. 488, § 1,45 Stat. 1475; Feb. 10, 1939, ch. 2, § 1111,53 Stat. 160; Oct. 21, 1942, ch. 619, title V, § 504(a), (c),56 Stat. 957).
Sections 219, 263, 296, 307, 723, and 731 of title 28, U.S.C., 1940 ed., gave specified courts, other than the Supreme Court, power to make rules. Section 761 of such title related to rules established in the district courts and Court of Claims. Section 1111 of title 26, U.S.C., 1940 ed., related to Tax Court. This section consolidates all such provisions. For other provisions of such sections, see Distribution Table.
Recognition by Congress of the broad rule-making power of the courts will make it possible for the courts to prescribe complete and uniform modes of procedure, and alleviate, at least in part, the necessity of searching in two places, namely in the Acts of Congress and in the rules of the courts, for procedural requisites.
Former Attorney General Cummings recently said: “Legislative bodies have neither the time to inquire objectively into the details of judicial procedure nor the opportunity to determine the necessity for amendment or change. Frequently such legislation has been enacted for the purpose of meeting particular problems or supposed difficulties, but the results have usually been confusing or otherwise unsatisfactory. Comprehensive action has been lacking for the obvious reason that the professional nature of the task would leave the legislature little time for matters of substance and statesmanship. It often happened that an admitted need for change, even in limited areas, could not be secured.”—The New Criminal Rules—Another Triumph of the Democratic Process. American Bar Association Journal, May 1945.
Provisions of sections 263 and 296 of title 28, U.S.C., 1940 ed., authorizing the Court of Claims and Customs Court to punish for contempt, were omitted as covered by H. R. 1600, § 401, 80th Congress, for revision of the Criminal Code.
Provisions of section 1111 of title 26, U.S.C., 1940 ed., making applicable to Tax Court Proceedings “the rules of evidence applicable in the courts of the District of Columbia in the type of proceeding which, prior to Sept. 16, 1938, were within the jurisdiction of the courts of equity of said District,” were omitted as unnecessary and inconsistent with other provisions of law relating to the Federal courts. The rules of evidence in Tax Court proceedings are the same as those which apply to civil procedure in other courts. See Dempster Mill. Mfg. Co. v. Burnet, 1931, 46 F.2d 604, 60 App.D.C. 23.
For rule-making power of the Supreme Court in copyright infringement actions, see section 25(e) of title 17, U.S.C., 1940 ed., Copyrights. See, also, section 205(a) of title 11, U.S.C., 1940 ed., Bankruptcy, authorizing the Supreme Court to promulgate rules relating to service of process in railroad reorganization proceedings.
Senate Revision Amendment
By Senate amendment, all provisions relating to the Tax Court were eliminated. Therefore, section 1111 of Title 26, U.S.C., Internal Revenue Code, was not one of the sources of this section as finally enacted. However, no change in the text of this section was necessary. See 80th Congress Senate Report No. 1559.1949 Act
This amendment clarifies section 2071 of title 28, U.S.C., by giving express recognition to the power of the Supreme Court to prescribe its own rules and by giving a better description of its procedural rules.
1988—Pub. L. 100–702designated existing provisions as subsec. (a), substituted “under section 2072 of this title” for “by the Supreme Court”, and added subsecs. (b) to (f).
1949—Act May 24, 1949, expressed recognition to the Supreme Court’s power to prescribe its own rules and give a better description of its procedural rules.
Effective Date of 1988 Amendment
Pub. L. 100–702, title IV, § 407,Nov. 19, 1988, 102 Stat. 4652, provided that: “This title [enacting sections 2072 to 2074 of this title, amending this section, sections 331, 332, 372, 604, 636, and 2077 of this title, section 460n–8 of Title 16, Conservation, and section 3402 of Title 18, Crimes and Criminal Procedure, repealing former section 2072 andsection 2076 of this title and sections 3771 and 3772 of Title 18, and enacting provisions set out as notes under this section] shall take effect on December 1, 1988.”
Effective Date of 1983 Amendment
Pub. L. 97–462, § 4,Jan. 12, 1983, 96 Stat. 2530, provided that: “The amendments made by this Act [enacting provisions set out as notes below, amending Rule 4 of the Federal Rules of Civil Procedure, set out in the Appendix to this title, adding Form 18–A in the Appendix of Forms, and amending section 951 of Title 18, Crimes and Criminal Procedure] shall take effect 45 days after the enactment of this Act [Jan. 12, 1983].”
Short Title of 1983 Amendment
Pub. L. 97–462, § 1,Jan. 12, 1983, 96 Stat. 2527, provided: “That this Act [enacting provisions set out as notes below, amending Rule 4 of the Federal Rules of Civil Procedure, set out in the Appendix to this title, adding Form 18–A in the Appendix of Forms, and amending section 951 of Title 18, Crimes and Criminal Procedure] may be cited as the ‘Federal Rules of Civil Procedure Amendments Act of 1982’.”
Pub. L. 100–702, title IV, § 406,Nov. 19, 1988, 102 Stat. 4652, provided that: “The rules prescribed in accordance with law before the effective date of this title [Dec. 1, 1988] and in effect on the date of such effective date shall remain in force until changed pursuant to the law as amended by this title [see Effective Date of 1988 Amendment note above].”
Rulemaking Authority of Supreme Court and Judicial Conference
Pub. L. 109–2, § 8,Feb. 18, 2005, 119 Stat. 14, provided that: “Nothing in this Act [see Short Title of 2005 Amendments note set out under section 1 of this title] shall restrict in any way the authority of the Judicial Conference and the Supreme Court to propose and prescribe general rules of practice and procedure under chapter 131 of title 28, United States Code.”
Tax Court Rulemaking Not Affected
Pub. L. 100–702, title IV, § 405,Nov. 19, 1988, 102 Stat. 4652, provided that: “The amendments made by this title [see Effective Date of 1988 Amendment note above] shall not affect the authority of the Tax Court to prescribe rules under section 7453 of the Internal Revenue Code of 1986 [26 U.S.C. 7453].”
The Rules of Practice in Admiralty and Maritime Cases, promulgated by the Supreme Court on Dec. 20, 1920, effective Mar. 7, 1921, as revised, amended, and supplemented, were rescinded, effective July 1, 1966, in accordance with the general unification of civil and admiralty procedure which became effective July 1, 1966. Provision for certain distinctly maritime remedies were preserved however in the Supplemental Rules for Certain Admiralty and Maritime Claims, rules A to F, Federal Rules of Civil Procedure, Appendix to this title.