Friday, December 19, 2008

Rules Enabling Act

Anthony Vitarelli recently posted A Blueprint for Applying the Rules Enabling Act's Supersession Clause on SSRN.  Click the article title to download.  This abstract follows:

When Congress passed the Rules Enabling Act (REA), it deferred to the Supreme Court's institutional expertise to enact guidelines for judicial procedure. In the REA, Congress included a provision - now known as the supersession clause - that declared existing statutes in conflict with new rules to "be of no further force or effect." This Comment examines a divergence between 18 U.S.C. 3731 and Federal Rule of Appellate Procedure 4(b)(1)(B) that implicates the supersession clause. Three circuits have adjudicated this conflict and reached different conclusions. The substance of the conflict concerns the timeliness of government appeals of district court decisions and orders in criminal cases. At present, Rule 4(b) permits a longer appellate time limit than 3731, but a 2007 Supreme Court case, Bowles v. Russell, may invalidate any limit longer than that in 3731. This Comment asserts that irrespective of Bowles, applying the supersession clause favors the primacy of Rule 4(b). Employing the supersession clause provides a blueprint for future rule-statute disputes concerning timeliness. In making these determinations, this Comment argues that courts should evaluate the rule versus the statute according to three metrics: the relative recency of enactment, the institutional competence of the respective authors to decide the issue, and the degree to which the rule affects substantive rights.

-Counseller/ps

http://lawprofessors.typepad.com/civpro/2008/12/rules-enabling.html

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