Rules of Practice and Procedure: A Study of Judicial Rule Making

The rule-making power of the courts in the United States is is brought into focus wherever procedural reform is undertaken. As more and more states have undertaken rev1s1on of judicial procedures, the power and authority of courts to promulgate rules of practice and the definition of the scope of such rules have claimed increasingly the attention of legal writers. This trend can be attributed in part to a growing realization that statutes governing practice and procedure in courts, enacted by legislatures meeting every year or two, have failed to achieve that minimum standard in the administration of justice necessary to satisfy the demands of a modern and complex society. Representative of the legal literature is the constructive criticism to be found in the stimulating and thought-provoking article by Dean Roscoe Pound, in which the defects of legislative regulation of court procedure and practice were spotlighted. That such criticisms are well-founded is apparent from the vigorous and continuing procedural revisions involving the use of the rule-making power which have taken place in so many jurisdictions during the past twenty-five years. It is the purpose of this paper to survey and discuss the sources and scope of the rulemaking power and the extent to which it can and should be exercised.