Monday, November 28, 2011
Back in March, I posted an entry about Katharine Traylor Schaffzin and her terrific article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000). Professor Schaffzin's article dealt with the new restyled Federal Rules of Evidence set to take effect on December 1, 2011. At the time, I promised that Professor Schaffzin would have a few guest posts on the new Rules around the time that they took effect. Below is the first of these guest posts:
Restyled FRE: Sacred Phrases Are In Fact Arbitrary
In my article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (Summer 2010), I suggested that the Advisory Committee on Evidence Rules restyle any phrase in need of restyling, regardless of whether the phrase was “sacred.” I posited that the classification of any phrase as sacred, and therefore immune from the restyling effort, was arbitrary. The Committee defined a sacred phrase as any phrase in the Federal Rules of Evidence that has “become so familiar in practice that to alter [it] would be unduly disruptive.” Nonetheless, the Committee set forth no protocol for determining whether a phrase was familiar in practice or whether it would cause an undue disruption. Moreover, there is no record of exactly which phrases remain unchanged because the Committee deemed them sacred or for any number of other reasons. I concluded that there is no reason to maintain inconsistent, ambiguous, redundant, repetitive, or archaic language simply because the Committee arbitrarily determined that such language was too sacred to change it.
Having recently returned from a symposium on the restyling project hosted by the Advisory Committee in conjunction with its Fall Meeting, I thought I would share the comments of several members of the Advisory Committee involved in the restyling project. A number of those Advisory Committee members agreed without hesitation that the classification of any phrase as sacred was made arbitrarily. Those members were unapologetic about their arbitrary decisions for two reasons. First, it would have been impossible for the Committee to embark on an empirical study to determine which phrases were so familiar in practice that to alter them would create an undue disruption. Second, those members disagreed with my underlying premise that a wholesale restyling of phrases, sacred or not, would be a good thing.
I’d agree that an empirical study of sacred phrases would have been inefficient. However, nothing prevented the Committee from conducting the kind of research that I did in writing my article to determine the significance of a given phrase prior to the introduction of the first draft of the Federal Rules of Evidence in 1969. After all, hasn’t any phrase that was eventually included in the final rules enacted in 1975 sacred at this point? So there must have been some significance in the language prior to the Federal Rules for one phrase to stand out above the others. Had the Committee looked into the significance of language prior to 1969, they would have restyled language that is certainly capable of improvement but which the Committee left unrevised and they would have maintained other language as sacred that they nonetheless did select for revision.
As to the second point, we’ll have to agree to disagree. The Advisory Committee was apparently not moved by my public comment that sacred phrases containing inconsistent, ambiguous, redundant, repetitive, and archaic language should be restyled because the Committee had already revised similarly situated phrases not arbitrarily deemed sacred. My point was that, because the Committee had already headed down the road of wholesale restyling, why reserve a few inscrutable phrases simply because we’ve all become so familiar with them? As long as we are stuck with the “truth of the matter asserted” and “substantially outweighs its prejudicial effect” for another thirty-five years, it looks like there will be a continuing demand for Evidence profs.