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1986 Rep. Advisory Comm. on Civ. Rules 1 (1986)

handle is hein.usfed/adcvru0019 and id is 1 raw text is: ADVISORY COMMITTEE ON THE CIVIL RULES
April 21, 1986
Minutes by P. Carrington, Reporter
Original in
Harvard Law Library
The meeting commenced at 9:15 a.m.                 Unauthorized Reproduction
Prohibited
The Committee discussed H.R. 1335, The Rules Enabling Act of 1986. It was
generally agreed that the statute would be a desirable enactment with respect to its
provisions on local rule-making.  It was generally the view that the supercession
provisions of the original Enabling Act were no longer needed. Judge Wiggins questioned
whether the role of Congress in the rule-making process needs to be retained if the
supercession clause is to be removed. Mr. Beyer, representing the H.R. staff, was
questioned on other provisions of the bill. He acknowledged that the function of the bill
could be as well served if the rule-making process retained the power to supercede
Congressional enactments which were denominated as rules of procedure. He suggested
amendatory language to accomplish such a change in the bill. Judge Gignoux undertook
to present the question to the Standing Committee.
(Reporter's Note: It would appear on further study that the
most effective amendment to accomplish the intended result
would be to terminate clause 2072(b) with the word evidence
as it appears in the third line. This would leave any rule of
procedure or evidence prescribed by Congress subject to
amendment by rule-making, while preserving the effect of any
Congressional enactment embodied in the United States Code
immune from rule-making modification.
Judge Skinner moved to table the proposed amendment of Rule 68. The motion
was seconded by Mr. Liman, and was unanimously carried.
The discussion of proposed changes in Rule 4(d)(i) and in Rule 4(0), 28 and 44 were
discussed. Note was taken of the proposed Marshal's Service Act, and of the proposals
regarding Rule 4(c) received from Mr. Roy Wepner of Westfield, NJ and from the
National Association of Process Servers. Judge Weis moved that the proposals regarding
Rule 4 be returned to the Reporter for possible synthesis with other modifications of the
same rule, for reconsideration at the next meeting of the Committee. The motion was
seconded by Judge Zimmerman and unanimously carried.
The comments on the proposed amendments to Rule 51 were discussed. Judge
Skinner moved to strike the word either in line 7 and to add the words or both after
argument on the same line.    Mr. Liman seconded the motion and it carried
unanimously. Judge Zimmerman noted that the gender neutralizing modification of the
next to last sentence had resulted in a significant loss of readibility. He urged the
Reporter to rewrite the sentence, and it was generally agreed that this should be done.
Subject to such modification, it was agreed that the proposed amendment should be
forwarded to the Standing Committee as the recommendation of the Committee.
The discussion of proposed changes in Rule 63 were next discussed. It was agreed
that the Rule should be further modified to make it applicable to disqualified as well as
disabled judges. It was also agreed that the Committee Note should be explicit that the
successor judge is authorized to recall a witness whose credibility must be assessed.

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