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93 Minn. L. Rev. 26 (2008-2009)
The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation

handle is hein.journals/mnlr93 and id is 28 raw text is: Article The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation Martin H. Redisht Dennis Murashko: INTRODUCTION Originally enacted in 19341 and revised only slightly in 1988,2 the Rules Enabling Act gives the Supreme Court the power to prescribe general rules of practice and procedure.3 It further specifies, however, that the rules shall not abridge, en- large or modify any substantive right.4 The Act's importance is difficult to overstate, for it plays a foundational, and often cen- tral, role in all federal court litigation. The Act has enabled the Court to promulgate rules governing civil, bankruptcy, crimi- nal, and appellate procedure in federal courts, as well as rules of evidence.5 Simply put, the Act, through the various rules t Louis and Harriet Ancel Professor of Law and Public Policy, North- western University School of Law. Copyright © 2008 by Martin H. Redish and Dennis Murashko. The authors would like to thank James Pfander, Alex Po- tapov, Judge Timothy Tymkovich, and Judge Stephen Williams for their help- ful comments. t J.D. Northwestern University School of Law, 2007; Law Clerk to the Honorable Stephen F. Williams, United States Court of Appeals, District of Columbia Circuit. 1. Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064 (codified as amended at 28 U.S.C. §§ 2071-2077 (2000)). 2. See Stephen B. Burbank, Hold the Corks: A Comment on Paul Car- rington's Substance and Procedure in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1029 (noting that, as between the 1934 and the 1988 versions of the Rules Enabling Act, the words of the basic grant of rulemaking authority are similar); see also infra notes 46-47 and accompanying text. 3. 28 U.S.C. § 2072(a) (2000). 4. Id. § 2072(a), (b). 5. See James C. Duff, The Federal Rules of Practice and Procedure Ad- ministrative Office of the U.S. Courts, The Rulemaking Process: A Summary for the Bench and Bar, Oct. 2007, http://www.uscourts.gov/rules/proceduresum

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