Restyling FRE Proposal Approved By The U.S. Supreme Court (Part XII)

On April 26, 2011, the U.S. Supreme Court approved amendments to restyle the FRE which shall become effective December 1, 2011 in the absence of any congressional action

This week, the U.S. Supreme Court approved amendments which would restyle the FRE. On September 14, 2010, the U.S. Judicial Conference had recommended and transmitted the proposal to the U.S. Supreme Court for its review.

Under the Rules Enabling Act, the rules adopted by the Supreme Court will take effect on December 1, 2011 unless Congress otherwise acts. See 28 U.S.C. § 2074(a) (“The Supreme Court shall transmit to Congress not later than May 1 of the year in which a rule prescribed under this section is to become effective a copy of the proposed rule. The rule shall take effect no earlier than December 1 of the year in which it is transmitted to Congress unless otherwise provided by law.”).

The approval by the Supreme Court is the sixth of seven key steps identified by the Administrative Office of the Courts:

Step Action
Step 1 Initial consideration by the Advisory Committee
Step 2 Publication and Public Comment
Step 3 Consideration of the Public Comments and Final Approval by the Advisory Committee
Step 4 Approval by the Standing Committee
Step 5 Judicial Conference Approval
Step 6 Supreme Court Approval
Step 7 Congressional Review - Rules Take Effect

The restyled rules are intended to include non-substantive changes. The judicial committee working on the restyling project applied the following “working principle”:

“A change is ‘substantive’ if

  1. Under the existing practice in any circuit, it could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of a certain piece of evidence); or
  2. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g, a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question), or
  3. It changes the structure of a rule so as to alter the way in which courts and litigants have thought about, and argued about, questions of admissibility (e.g, merging Rules 104(a) and 104(b) into a single subdivision); or
  4. It changes … [so-called a] ‘sacred phrase’ – ‘phrases that have become so familiar as to be fixed in cement.’”

    Report of the Advisory Committee on Evidence Rules, at 2 (May 12, 2008).

    As described by the Advisory Committee on Evidence Rules, the history of the restyling project has been underway for a substantial period:

    "[I]n the early 1990s, Judge Robert Keeton, who was chair of the Standing Committee, and a committee member, University of Texas Professor Charles Alan Wright, led an effort to adopt clear and consistent style conventions for all of the rules. Without consistent style conventions, there were differences from one set of rules to another, even from one rule to another within the same set. Style varied because a committee seeking to amend a rule did not always consider how another rule expressed the same concept. Style varied based on the membership of a particular advisory committee. And style varied as the membership of the Standing Committee changed over time. Different rules expressed the same thought in different ways, leading to a risk that they would be interpreted differently. Different rules sometimes used the same word or phrase to mean different things, again leading to a risk of misinterpretation. And in other respects, too, rules drafters who were experts in the relevant substantive and procedural areas sometimes did not express themselves as clearly as they might have."

    Report of the Advisory Committee on Evidence Rules, at 2/480 (May 6, 2009).

    For more information, along with a time line and links to many of the reports considered during the drafting and review process, see the Restyling FRE Legislative History Page.

Federal Rules of Evidence