Abstract
Debates over the validity of Federal Rules of Civil Procedure have historically centered on the "substantive rights" restriction of the Rules Enabling Act of 1934. While Supreme Court decisions from Sibbach v. Wilson & Co. through Hanna v. Plumer and beyond have arguably deprived the restriction of any practical force, scholars have consistently favored a more rigorous interpretation of the directive that federal rules not "abridge, enlarge, or modify any substantive rights." Despite the historic impotence of the substantive rights restriction, discussions of the validity of the Federal Rules of Civil Procedure continue, even today, to center on the substantive rights issue to the exclusion of other possible determinants of rule validity. Curiously, neither courts nor commentators have focused much attention on potential constitutional restrictions on judicial rulemaking power. Scholars who have examined possible constitutional limitations on federal judicial rulemaking authority have concluded either that such limitations extend as far as and no farther than the substantive rights restriction or that any constitutional infirmity in the current rulemaking pattern results from the per se invalidity of congressional delegations of power to make rules that supersede statutes.
First Page
41
Recommended Citation
Ralph U. Whitten,
Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4,
40
Me. L. Rev.
41
(1988).
Available at:
https://digitalcommons.mainelaw.maine.edu/mlr/vol40/iss1/3
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