Introduction
The Rules Enabling Act of 1934 revolutionized the federal judicial rulemaking process. The Act authorized the Supreme Court to promulgate uniform rules of procedure for civil cases in the U.S. district courts. Pursuant to the Act, the rules required congressional approval before taking effect and superseded any laws with which they conflicted. Between the 1940s and the 1960s, Congress extended the Court’s rulemaking power, enabling it to promulgate uniform criminal, appellate, and bankruptcy procedural rules that also took precedence over conflicting statutes.
From its establishment in 1789 until 1934, however, the Court had a more limited power to make procedural rules for the federal courts. Section 17 of the Judiciary Act of 1789 gave all federal courts the ability, on an individual basis, to make rules necessary for conducting their business, provided those rules did not conflict with federal law. Most legal scholars believe, however, that the courts possessed inherent authority to do so without a congressional grant of authority. The Court began to promulgate its own procedural rules in 1790, but prior to 1934 established uniform rules for the lower federal courts only in equity, admiralty, claims, and copyright cases.
Rules of the Supreme Court of the United States
The Rules of the Supreme Court of the United States set the standards for practice before the Supreme Court by attorneys and pro se litigants. They also delineate many of the Court’s major procedures. Unlike many other federal procedural rules, this body of standards has evolved over time almost entirely through judicial action.
The Judiciary Act of 1789 authorized all Article III federal courts to “make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States.” This power was consistent with the inherent powers that courts in the Anglo-American tradition exercised to govern many ministerial and procedural aspects of cases before them. Starting in 1790, the Supreme Court of the United States began exercising this power in the form of ad hoc orders of court. These orders were occasionally compiled for publication by court reporters or clerks but were not published by the Court as cohesive manuals for practice until the twentieth century. In some instances, the Court’s orders dealt with seemingly mundane issues related to individual lawyers or cases. For example, the first Supreme Court rule instated John Tucker as the Court’s clerk and prohibited him from appearing as a lawyer in the Court while he held that office.
Over the next few decades, the justices began to pronounce broader rules governing issues likely to recur frequently. In 1792, for example, the Court announced, in response to a query by Attorney General Edmund Randolph, that the justices would “consider the practice of the courts of king’s bench, and of chancery, in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary.” While the Court continued to make sporadic adjustments to this broad edict, it remained in effect until 1939 and formed the backbone of the Court’s early standards of practice and procedure.
Many of the early supplements to the Court’s adoption of English practice dealt with the oral argument process. In 1795, for example, the Court announced that attorneys should provide it “with a statement of the material points of the case from the counsel on each side” in advance of oral arguments in the case. In 1801, the Court promulgated a rule permitting plaintiffs to proceed ex parte (without the other side) when defendants failed to appear at the appointed time. In 1812, the Court dictated that only two lawyers could argue the case for each side.
Until 1954, rules such as these were compiled in a somewhat haphazard fashion and at irregular intervals. The rules were generally ordered in chronological fashion, such that rules touching on related concepts were often far removed from each other. Moreover, because of this chronological arrangement, collections sometimes included rules that had already been rendered obsolete. The 1843 edition of the rules, for instance, included successive orders establishing the justices’ circuit assignments.
At a few junctures in the nineteenth century, court staff and reporters attempted to rationalize the collation and publication of the rules. In 1828, the Court republished all the orders and rules that remained pertinent, omitting several of the prior orders related to individual officers, attorneys, or cases from the past. After this effort, however, Court reporters continued to list new rules on the same ad hoc basis as before. The next published body of rules (in 1843) reverted to a chronological organization.
In 1859, the Court made a more concerted effort to systematize the mounting collection of past rules and orders. The Court directed its clerk, William Carroll, to “collect all the rules adopted by this Court from time to time, that he may designate those which are obsolete or have been repealed [and] . . . arrange and classify all those now in force under their appropriate heads, and . . . report the same to this Court.” It appears that Carroll attempted to comply with this order, but that the Court rejected his draft. The version of the rules that the Court did adopt showed some attempts at organization, including an index and the numbering of rules, but largely reflected past practice. Moreover, even after the 1859 edition, the Court continued to make rules by consecutive orders, rather than amending the existing rules, and reporters continued to amass new rules at the end of the existing ones, leaving lawyers to reconcile various coexisting versions.
Before 1954, the Court did not promulgate rules on many seemingly important issues and only partly resolved others. For example, several of the rules referred to decisions or acts made by a single justice but did not suggest how an attorney or party should make an application to individual justices. Similarly, the rules did not specify the procedures for in forma pauperis proceedings until 1954, even though cases brought by indigent litigants had long before come to account for a substantial number of the appeals and writs filed with the Court. Many of the rules that were “on the books,” moreover, fell into disuse before the Court took any action to revoke them. As a matter of practice, for example, Court staff generally did not insist upon some of the more exacting criteria for introduction to the Supreme Court bar in the early twentieth century. Similarly, various iterations of the rules since 1874 required that all motions be in writing or “printed” (which frequently meant the production of dozens of copies). Yet in practice, it appears that for much of the first half of the twentieth century the clerk’s office often advised attorneys not to print motions presenting straightforward matters. Writing in 1898, former Attorney General Augustus Garland summed up the collective effect of these omissions and informal practices, suggesting that, “There is much in the practice and usages of the court not provided for by any rule, and [which] in some instances cannot well be covered by rule;—a sort of common law of procedure that lies outside of rules and cannot be put down in written charts.”
This rather informal process increasingly stood out against the backdrop of more methodical rulemaking efforts in the first decades of the twentieth century. The Judges’ Bill of 1925—which reformed the Supreme Court’s jurisdiction and gave the justices control over much of their docket through the extensive use of the writ of certiorari—fueled an effort by a committee of justices led by Justice Willis Van Devanter to craft a more rigorous and orderly set of rules. Chief Justice William Howard Taft, who emphasized the reform and rationalization of the judicial branch throughout his tenure, argued that “[n]o such thorough revision has ever been had in the history of the Court.”
The 1925 revisions to the rules were perhaps not as thoroughgoing as Taft’s language might suggest; the substance of many rules remained largely unchanged. Perhaps the most significant substantive revision was the integration of rules for appeals from the Court of Claims, which the Court had treated as a distinct subject since 1866. Nevertheless, the committee did engage in some global reorganization. Most notably, it restructured the body of rules to place related issues closer to each other. New rules the Court adopted in 1925, many of which dealt with the more extensive use of certiorari, were integrated into existing rules by subject, rather than placed at the end. The first several amendments and additions to the rules after the 1925 overhaul adopted a similar pattern.
However, beginning in 1941, new rules were again promulgated as ad hoc orders and tacked on to existing rules. Several of the changes the Court adopted after 1925 were designed to curtail the number of cases the justices had to hear. In 1928, the Court added a requirement to Rule 12 that parties state the basis on which they claimed Supreme Court jurisdiction, thus allowing the Court to dispense with many improper appeals prior to argument. Through a series of rules promulgated between 1936 and 1942, the Court added an analogous requirement that the parties show that their case presented a “substantial” issue. This requirement similarly allowed the Court to resolve minor cases (or appeals from state cases with only peripheral federal issues) on the parties’ written submissions.
Despite these changes, some midcentury practitioners and scholars claimed that the Supreme Court’s rules had failed to keep pace with mounting reforms to other areas of federal judicial procedure. The adoption of the Federal Rules of Civil Procedure (FRCP) in 1938 and the Federal Rules of Criminal Procedure (FRCrP) in 1946 arguably accentuated this point. Whereas the FRCP merged equity and common law, for example, several of the Supreme Court rules still treated the two systems as distinct entities into the 1950s. Similarly, both the FRCP and FRCrP abolished antiquated pleadings like bills of exceptions, yet the Supreme Court rules continued to refer to these procedural devices and occasionally failed to account for their modern analogues.
In some instances, outdated rules were obvious and seldom relied upon. The rules formally continued to contemplate appeals from the Supreme Court of the Commonwealth of the Philippines for several years after the nation gained its independence in 1946, for example. Other outdated rules would not be so obvious to litigants and attorneys relying solely on the rules, however. The version of Rule 38 promulgated in 1925, for instance, continued to reference a three-month filing deadline from a statute of that year long after that law had been replaced by one with a ninety-day deadline. Where litigants relied on the rule and the Courts relied on the operative statute, this sort of hidden distinction could be fatal to an application for a writ of certiorari.
In 1952, responding to concerns that the rules had become obsolete, Chief Justice Fred Vinson appointed a new committee of justices to identify problems and suggest reforms. Justice Stanley Reed chaired the committee, joined by justices William Douglas, Felix Frankfurter, and Robert Jackson. As former solicitors general, Reed and Jackson had regularly practiced before the Supreme Court and were aware of many of the challenges the rules presented to attorneys. Vinson also requested suggestions for amendments to the rules from then-current Supreme Court litigators. Reflecting on the results of this study, Vinson’s successor, Earl Warren, stated that “[t]he unanimity of opinion [among the attorneys] as to the scope and nature of the requirements was rather surprising in view of their divergent outlooks.” Most Supreme Court advocates had “little criticism of [the Court’s] current practice,” Warren suggested, but many were concerned that the rules did not accurately reflect that practice. He predicted that “if our rules were made to conform [to the reality of Supreme Court practice,] the bar would have no complaint.”
The committee of justices appointed Supreme Court advocate Frederick Bernays Wiener as reporter for the reform effort. The Court adopted the “Revised Rules of The Supreme Court of the United States” resulting from that effort in 1954. Most of the changes to the rules followed Warren’s claim that the rules should mimic the Court’s actual practice. Many of the obsolete rules were either abrogated or revised to reflect the adoption of the FRCP and FRCrP and other major legal reforms. The new rules also made two major procedural changes by streamlining the processes for both appeals and petitions for writs of certiorari. The number of separate legal documents required in appeals cases, for instance, shrank from nine to three.
The 1954 rules were ordered by subject matter and in parts like the civil and criminal rules. The Court has largely retained this structure in each subsequent iteration of the rules. Part I, “The Court,” delineated the duties of the clerk and set out the Court’s terms and sessions. Part II, “Attorneys and Counselors,” dealt primarily with the rules governing admission to and expulsion from the Supreme Court bar. The next five parts set out the rules for each of the Court’s five major types of disputes: original jurisdiction cases (those in which the Court acts as a trial court); appeals; certiorari cases; certified questions; and petitions for extraordinary writs (such as habeas corpus). Part VIII laid out the rules for practice before the Court (specifying the standards for filing briefs and motions, for example). Part IX governed special proceedings such as in forma pauperis proceedings for indigent parties. Part X dealt with the manner in which the Court would dispense with causes and set the rules for interest on judgments and petitions for rehearing. Part XI officially abrogated all prior rules. Finally, the rules included an appendix of forms to guide practitioners filing documents with the Court.
Since the 1954 revisions, the Supreme Court has issued several new editions of the rules, each reflecting modifications to particular rules but chiefly retaining the template set by the 1954 edition. Perhaps the most significant organizational overhaul came in 1989. The Court then moved certiorari procedures to Part III and consolidated the parts previously devoted to original jurisdiction, appeals, extraordinary writs, and questions on certification into a new Part IV entitled “Other Jurisdiction.” This change likely reflected the passage of the Supreme Court Cases Selections Act of 1988, which eliminated many of the existing forms of appeal as of right and made certiorari the primary procedural vehicle for Supreme Court review.
Rules of Practice for the Courts of Equity of the United States
The framers of the Constitution granted the federal courts jurisdiction over both common-law actions and suits in equity. Equity was a centuries-old system of English jurisprudence in which judges based their decisions on general principles of fairness in situations where rigid application of common-law rules would have created injustice. Judges exercising equity jurisdiction used a distinct set of procedures, such as hearing cases without a jury, and employed remedies that allowed them greater flexibility to resolve disputes. The exercise of equity jurisdiction periodically led to debate about the power and discretion of federal judges.
Article III, Section 2, Clause 1 of the U.S. Constitution extended the federal judicial power to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” In section 11 of the Judiciary Act of 1789, Congress provided the circuit courts with original jurisdiction over equity cases in which more than $500 was in dispute when the United States was plaintiff or petitioner, an alien was a party, or the suit was between a citizen of the state where suit was brought and a citizen of a different state. A traditional limit on equity, incorporated into U.S. law, provided that federal courts would have equity jurisdiction only over cases in which no sufficient legal remedy existed. Section 25 of the Act enabled the Supreme Court—under the same limited circumstances applying to cases in law—to review an equity decision made by the highest court of a state.
The federal courts’ equity jurisdiction was not based on specific causes of action, but instead pertained to situations that could arise in virtually any sort of litigation. As Alexander Hamilton explained in Federalist, no. 80, “there is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction.” Hamilton elaborated in Federalist, no. 83, that “the great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions to general rules.” Supreme Court Justice Joseph Story, who authored Commentaries on Equity Jurisprudence in 1836, echoed Hamilton, writing that “cases must occur to which the antecedent rules cannot be applied without injustice, or to which they cannot be applied at all.”
Some states in the Early Republic followed the English tradition of maintaining separate courts for law and equity. Congress, however, vested the federal courts with both types of jurisdiction. In the Process Act of 1792, Congress provided that equity cases proceed “according to the principles, rules and usages which belong to courts of equity . . . as contradistinguished from courts of common law,” to ensure that the two types of actions remained distinct and that judges did not unduly enlarge their discretion by applying equitable doctrines to actions properly governed by common law. The Process Act provided further that the Supreme Court could issue its own rules governing equity procedure in the federal courts. Chief Justice John Jay issued a rule in 1792 directing federal judges sitting in equity to look to the precedents of the English Court of Chancery in determining what procedural rules to apply.
The English rules of equity, as modified later by the Supreme Court, empowered federal courts sitting in equity to provide relief in exceptional cases by, for example, ordering that restitution be made to victims of fraud for whom common law provided no sufficient remedy; enforcing specific obligations reflecting the intent of contracting parties despite the accident or mistake of one of the parties; issuing injunctions in cases where a party might otherwise be subjected to irreparable harm; and adjudicating disputes relating to trusts not within the scope of the common law. Common-law remedies, on the other hand, were typically limited to the awarding of monetary damages.
The Supreme Court first promulgated Rules of Practice for the Courts of Equity of the United States in 1822. Little is known about the rules’ origins, but some scholars have theorized that they were drafted primarily by Justice Story. The rules were not comprehensive because, as Rule XXXIII specified, any matters not covered were to be regulated by the practices of the English Court of Chancery. Rather than making major changes to traditional equity practice, therefore, the rules made only minor modifications or clarifications to routine elements of procedure, such as the filing of a bill; service of process; the filing of answers, demurrers, and other pleadings; the taking of testimony; and petitions for rehearing. The 1842 rules that replaced the original ones were more detailed, consisting of ninety-two provisions grouped under twenty-five unnumbered titles, but likewise did not deviate significantly from existing practice. The Supreme Court’s promulgation of these rules nevertheless reflected the dual aims of maintaining the strict separation between equity and common-law jurisdiction and ensuring uniformity in federal equity practice.
Although the Supreme Court amended the 1842 equity rules several times between the 1850s and the 1890s, the rules were seen as outdated and archaic by the early twentieth century. The rules had not, in fact, kept up with the English equity practice from which they drew their inspiration. Criticism of equity practice as slow and expensive was widespread. In 1908, future President and Chief Justice William H. Taft proposed that the Supreme Court make a major revision of the equity rules. Taft, who was later one of the main forces behind the merging of law and equity in the federal courts, pointed out that the Court had “not given particular attention to the simplification of equity procedure and to the speeding of litigation in Federal courts which might well be brought about by a radical change in the rules of equity prescribed by it.”
In 1911, the Court formed a committee of three, consisting of Chief Justice Edward D. White and Associate Justices Horace Lurton and Willis Van Devanter, to study the question of revising the equity rules. William J. Hughes, a long-serving Department of Justice lawyer who advised the Attorney General on matters of jurisdiction and procedure, served as the Court committee’s secretary. In a statement announcing the formation of the committee, the Court requested that each of the U.S. courts of appeals appoint a committee of at least three attorneys residing within its judicial circuit to suggest changes to the rules. A total of forty-three attorneys served on the committees of the nine circuits, including Frank B. Kellogg—then the president of the American Bar Association and later a U.S. Senator from Minnesota as well as the U.S. Secretary of State—in the Eighth Circuit. This rulemaking partnership between the Supreme Court and the bar was the first of its kind. The arrangement set a precedent for future collaboration on the Federal Rules of Civil Procedure and other sets of rules promulgated under the Rules Enabling Act of 1934.
In 1907, the ABA established the Committee to Suggest Remedies and Formulate Proposed Laws to Prevent Delay and Unnecessary Cost in Litigation, and the Supreme Court requested this committee’s assistance in proposing improvements in equity practice as well. The ABA committee’s chief criticism of existing equity practice was that all testimony was taken out of court and submitted to the judge in writing. “It is a well-known fact,” the committee stated in a 1911 report, “that in England and many States of the Union testimony in equity cases, on the main issues, is taken in open court.” England had introduced live testimony in equity proceedings nearly forty years earlier with the Judicature Act of 1873, but the United States had not followed suit. Allowing live testimony, the committee argued, would relieve the judge of the obligation to read the entire record; instead the judge could read only those portions that appeared especially relevant. Moreover, the judge would have the ability to question witnesses and therefore arrive more quickly at an understanding of the facts. While such a change might pose difficulty in a state that maintained separate courts for law and equity, the transition would be simpler in the federal courts, the judges of which were already well versed in hearing oral testimony. The Supreme Court appeared to be interested in the issue of live testimony as well. In the course of his research, Justice Lurton traveled abroad to observe English equity practice in person. During his trip, Lurton submitted to Robert Reid, the Lord High Chancellor of Great Britain, twelve written questions about English procedure, including one concerned with “the practice of hearing evidence orally in equity cases.”
The ABA committee also highlighted what it saw as an unacceptable rigidity in the equity procedure of the federal courts. Namely, if a judge determined that a case filed in equity should have been filed on the law side of the court (or vice versa), the suit would be immediately dismissed, forcing the plaintiff to begin a new action. A federal judge in Minnesota, however, had recently ordered the amendment of an improperly filed complaint so that it could be transferred from the law docket to the equity docket. The U.S. Court of Appeals for the Eighth Circuit had approved the order in 1909. The committee pointed to this case in suggesting that the more liberal pleading practice be formalized in the new equity rules.
On November 4, 1912, the Court ordered that the new equity rules, consisting of eighty-one individually titled provisions, would take effect on February 1, 1913. Although the 1912 rules drew heavily from English equity practice, which had become simplified over the years, they departed from their predecessors of 1822 and 1842 in giving no general direction that courts look to English practice in situations not covered by the rules. As a result, the federal courts were bound only by the new rules, in addition to any rules the courts might themselves make pursuant to the power granted them by Rule 79. The new rules also introduced more flexibility into equity practice, particularly with respect to pleading requirements. Rule 18, for example, provided that “the technical forms of pleading in equity are abolished,” and Rule 19 stated that courts were to permit liberal amending of pleadings and “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Along these same lines, Rule 22 addressed one of the ABA’s main concerns by mandating that equity cases mistakenly filed on the law side of the court, and vice versa, be transferred to the correct docket and allowed to proceed. Moreover, as provided by Rule 23, issues of law arising in an equity suit were to be decided in that suit without a transfer to the law side. Under Rule 26, a plaintiff could now join multiple causes of action in equity together in one suit as long as each cause was held by all plaintiffs and applied to all defendants. Perhaps of greatest significance was Rule 46, mandating that all testimony be “taken orally in open court” except where otherwise provided. Rule 47 stated that the court could permit the deposition of witnesses only under extraordinary circumstances. Rules 56 and 57 attempted to speed up the resolution of equity cases by providing for the automatic placement of matters on the trial calendar and placing strict limits on continuances. The final provision, Rule 81, abrogated all previous federal equity rules of procedure.
The new equity rules were generally popular with practitioners, most of whom believed them to be simpler and more efficient their predecessors. Many praised the quickening pace of equity litigation, which cut down on costs for parties and allowed judges to avoid backlogs on their dockets. As one attorney put it after the rules had been in place for a year, “it may fairly be said that the influence of the new rules is toward getting the old causes on the calendars cleaned up, disposing of all inactive cases and actually trying those which have been filed since the rules went into effect.” After nine years of experience under the new equity rules, federal judges remained generally enthusiastic. Several praised in particular the taking of testimony in open court, which simplified the record and made cases easier to understand for both trial and appellate judges. While some lawyers unaccustomed to this method initially objected, most came to embrace the new procedure. Over the ensuing years, the only significant complaint about the rules was that varying court interpretations of some provisions were causing uncertainty for attorneys practicing in multiple jurisdictions. A suggestion that the Supreme Court promulgate a new rule providing a mechanism by which it could harmonize conflicting interpretations was not adopted, however.
The Federal Rules of Civil Procedure, which became effective in 1938, provided for “one form of action,” thereby abolishing the formal distinction between law and equity (as many states had already done, beginning with the 1848 Field Code in New York). Although the 1912 equity rules were superseded by the new civil rules, they were hardly rendered obsolete. Charles E. Clark, the Yale law professor and future federal judge who served as reporter for the Advisory Committee that created the civil rules, had urged that the 1912 equity rules, which he called “an embodiment of . . . best practice,” serve as the basis for the new rules. Clark’s vision largely prevailed, and the FRCP incorporated most of the substance of the equity rules, as can be seen in the Advisory Committee notes on many of the modern civil rules.
Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction
The founders broadly agreed that the federal courts would exercise admiralty and maritime jurisdiction (the two terms being used interchangeably), because suits regarding shipping and navigation of the seas often involved questions of national importance that implicated commerce, international relations, and the rights of foreign citizens. Admiralty’s significance was underscored by the fact that the Confederation Congress created only one court—the Court of Appeals in Cases of Capture, which heard appeals from state courts in a narrowly defined category of admiralty cases between 1780 and 1787. The exercise of exclusive admiralty jurisdiction by the federal judiciary after 1789 represented an important transfer of authority from state to federal courts, which functioned according to unique procedures and laws rooted in federal statutes, ancient civil codes, and international custom.
Article III of the Constitution stated that the “judicial power shall extend . . . to all Cases of admiralty and maritime Jurisdiction.” In the Judiciary Act of 1789, Congress granted the district courts exclusive original jurisdiction over civil admiralty and maritime matters. Admiralty jurisdiction had its roots in England, where specialized admiralty courts operated separately from the common-law courts. When sitting in admiralty, federal courts operated according to distinct procedures and substantive law. Many traditional admiralty matters were proceedings in rem, meaning they involved claims (or “libels”) against vessels or freight rather than against individuals. Perhaps the most important difference between admiralty and common-law courts was that admiralty judges conducted trials without juries and applied general maritime law.
One of the central functions of admiralty jurisdiction was the hearing of prize cases. In the eighteenth and early nineteenth centuries, nations including the United States commissioned privateers to capture the merchant vessels of their enemies during hostilities. Privateers brought captured vessels before admiralty courts, which determined the legitimacy of the capture, condemned and sold the ship and its cargo, and distributed the proceeds to the privateer as compensation. District court prize jurisdiction was especially important during the frequent hostilities between the United States, France, and Britain between the 1790s and 1815. The courts adjudicated prize claims by American and foreign privateers as well as American naval crews claiming bounties under congressional statutes. Prize cases were never a large proportion of district court business, and such cases faded in importance in the nineteenth century.
Congress also relied on federal courts sitting in admiralty to enforce the nation’s trade and revenue laws. The 1789 Judiciary Act stated that the district courts would have jurisdiction over all seizures under the revenue, navigation, and trade laws of the United States when the seizures were made on the high seas or on waters navigable from the sea by large vessels. The majority of admiralty cases brought before the district courts in the 1790s were government seizures to enforce revenue laws. The district courts also heard seizure cases arising from the enforcement of a congressional ban on American ships participating in the international slave trade.
The remainder of admiralty cases in the district courts were private civil suits that involved maritime subjects. Among the most common contract disputes in admiralty were suits by seamen to recover unpaid wages. General maritime law offered unique protections to seamen, whose jobs involved dangerous duties and long journeys at sea. Claims for salvage awards provided another source of civil litigation for federal courts sitting in admiralty. In salvage cases, the court determined the compensation allowed to individuals who saved a ship from peril on the seas or recovered ships lost at sea through capture or shipwreck.
For 174 years, federal courts followed a distinct set of procedures in admiralty cases. In the Process Act of 1792, Congress provided that admiralty procedure would follow “the principles, rules and usages which belong . . . to courts of admiralty . . . as contradistinguished from courts of common law.” Practically speaking, this meant that federal courts would apply the procedures traditionally used in English admiralty courts. The Act also gave the Supreme Court the power to promulgate its own rules of admiralty procedure for the U.S. district courts. Although the Court used a parallel grant of authority under the Process Act to adopt procedural rules for equity cases in 1822, it did not make admiralty rules until 1844, when it published 47 rules under the title, “Rules of Practice for the Courts of the U.S. in Admiralty and Maritime Jurisdiction on the Instance Side of the Court” (“instance” referring to ordinary admiralty jurisdiction, as opposed to prize jurisdiction, under English law). The rules, believed by most scholars to have been authored by Justice Joseph Story, had an effective date of September 1, 1845. Although the Court had possessed the power to adopt such rules since 1792, it cited as the basis for the new rules an 1842 act that had reiterated its rulemaking authority.
The initial admiralty rules were not comprehensive, nor were they intended to make any fundamental changes to admiralty procedure. Instead, they were designed only to clarify certain procedural issues. Rules 12–19 specified the types of suits that could be brought to enforce certain causes of action and exemplified the rules’ flexibility. A suit to collect payment for materials or repairs, for example, could be brought against the ship and its freight in rem or against the master or owner in personam. Plaintiffs could pursue some causes of action in a greater variety of ways, such as a suit for mariners’ wages, which could be brought against the ship, freight, and master; the ship and freight; or the master or owner alone. A suit for salvage could be brought against the property saved, the proceeds of any sale, or the person who requested the salvage service. In contrast, a suit for an assault or beating on the high seas could be brought only in personam. Most of the other 1844 admiralty rules dealt with routine matters, such as the service of process, pleading requirements, the submission of evidence, the disposition of property, and appeal to a U.S. circuit court.
The Court added supplemental rules and amended existing ones periodically over the ensuing decades but did not publish a new edition of the rules until 1920. The “Rules of Practice of the Courts of the United States in Admiralty and Maritime Jurisdiction,” consisting of fifty-seven rules and effective March 7, 1921, made no major changes to the existing admiralty rules. They mainly reorganized and restated the original rules, although the Court omitted three of the old rules and added three new ones. Accordingly, the new rules elicited little comment from the bench and bar.
In 1938, the Federal Rules of Civil Procedure (FRCP) went into effect. The FRCP merged law and equity into one form of action, but admiralty remained a separate domain, and therefore continued to be governed by its own procedural rules. The Supreme Court’s rulemaking power was now greater in the civil realm—where the Rules Enabling Act of 1934 authorized the Court to make rules that superseded any inconsistent statutes—than in the admiralty realm, where the 1842 statute granted no such authority. This disparity was brief, however, as Congress provided in the Judicial Code of 1948 for admiralty rules to supersede conflicting laws.
Before long, lawyers (including the Attorney General of the United States, James McGrath) expressed their displeasure at the fact that the admiralty rules were not as modern or effective as the FRCP. McGrath urged the Supreme Court to “make available to the district courts in their admiralty practice the modern procedural advantages of the Federal Rules of Civil Procedure.” The Maritime Law Association of the United States suggested in 1953 that the FRCP should be applied in admiralty “as near as may be,” a position in which the American Bar Association concurred. The Judicial Conference of the United States established its standing Committee on Rules of Practice and Procedure in 1958 and quickly created advisory committees in several rulemaking areas, including admiralty. The Advisory Committee on Admiralty Rules was asked immediately to begin a study of the feasibility of merging admiralty procedure with civil procedure. As an intermediate measure, the Supreme Court, at the Advisory Committee’s suggestion, adopted several new admiralty rules in 1961 designed to replicate the liberal discovery provisions of the FRCP.
In 1962, the Advisory Committee made a formal recommendation that the admiralty rules be merged with the FRCP. Doing so, the committee asserted, would improve admiralty procedure greatly and relieve practitioners of the burden of learning a distinct set of procedures for admiralty cases. In 1965, the Advisory Committee suggested amendments to the FRCP that would accomplish this purpose. To cover certain unique but necessary aspects of admiralty practice, such as suits in rem, the committee proposed the Supplemental Rules for Certain Admiralty and Maritime Claims. The Supreme Court issued an order on February 28, 1966, adopting the amendments to the FRCP, including the addition of the Supplemental Rules, and the amendments took effect on July 1, 1966. As part of the merger of admiralty and civil procedure, the 1920 admiralty rules were rescinded in their entirety. FRCP 1 was amended to provide that the rules governed procedure “in all suits of a civil nature whether cognizable as cases at law or in equity or in admiralty,” with the exception of prize cases, which were governed by statute. FRCP 9(h) was added to allow a plaintiff to designate a claim as an admiralty and maritime claim if the district court would have had jurisdiction on other grounds as well. A designation under Rule 9(h) would trigger the applicability of other admiralty-specific parts of the FRCP, including the Supplemental Rules.
Rules of the Supreme Court of the United States with Reference to Appeals from the Court of Claims
In 1855, Congress created the Court of Claims to resolve financial claims against the United States. In Gordon v. United States (1865), the Supreme Court of the United States held that it could not accept appeals in such cases because claims judgments were subject to the approval of the Secretary of the Treasury and thus not final judicial judgments. Congress responded by passing a statute making the Court of Claims’ judgments final.
In 1866, the Supreme Court issued an order promulgating three rules for appeals from the Court of Claims under the new statute. Rule 1 outlined the record upon which the Court would judge claims appeals. Rule 2 delineated the process for applying for an appeal from the Court of Claims. Rule 3 stated that the period for appeal “shall cease to run from the time an application is made for the allowance of appeal.”
In 1871, the Court added two new rules. Rule 4 required the Court of Claims to make findings of fact. Rule 5 authorized parties to request such findings from the Court of Claims as part of the appeal process. In its 1881 term, the Court issued an order applying Rule 1 to a new set of claims cases against the District of Columbia. In substance, this order and the existing five rules continued to govern appeals from the Court of Claims to the Supreme Court until 1925. In that year, the Supreme Court integrated appeals from the Court of Claims into its existing rules governing appeals from other courts, obviating the need for separate rules for claims appeals.
Rules for Practice and Procedure Under the Copyright Act of 1909
In 1909, Congress passed a major copyright law for the first time since 1790. This law authorized copyright holders to sue in federal court to obtain monetary damages, impound infringing materials, recover improper profits, and secure injunctions against further infringements of their copyrights. Section 25 of the Act required the Supreme Court of the United States to prescribe rules of “practice and procedure” for such cases.
In response, the Supreme Court promulgated thirteen rules, which went into effect on July 1, 1909 (the effective date of the statute). The first two rules dealt with all cases arising under the new copyright law, while the remaining rules focused on the process for summary seizure and impoundment of infringing materials. Rule 1 applied the existing rules of equity, where pertinent, to copyright cases. Rule 2 required plaintiffs to make a copy of the copyrighted work (with certain exceptions for works that were difficult to copy) and enclose it with their petition. Rules 3 and 4 required plaintiffs to file affidavits and bonds to secure a seizure. Rules 5 and 6 outlined the procedure for marshals to seize and impound infringing materials. Rules 7 and 8 laid out the process for defendants to make an exception to the amount of the bond penalty (the amount due for a default on the bond) or to the plaintiff’s sureties (third parties guaranteeing the bond). Rules 9 and 10 delineated the process for a defendant’s recovery of seized materials by filing a suitable bond and an affidavit contesting the plaintiff’s infringement claim. Rules 11 through 13 dealt with the duties and powers of marshals in the seizure and return processes.
The Supreme Court has amended its copyright rules twice. In 1939, the Court amended Rule 1 to state that copyright proceedings would be governed by the Federal Rules of Civil Procedure (FRCP) where those rules did not contradict the more specific provisions of the copyright rules. This change likely reflected the merger of law and equity in the FRCP, adopted a year earlier. In 1966, the Court abrogated Rule 2 as part of an omnibus set of orders making changes to several rules of practice and procedure.
In 1976, Congress passed a new copyright law that replaced the 1909 Act. However, section 503 of the new act contemplated a broadly similar set of impoundment procedures as the 1909 Act and the Supreme Court’s rules. Lower court opinions have held that the Court’s rules remained in force under the 1976 Act and subsequent laws.
In recent decades, some scholars have argued that the summary impoundment processes contemplated by the Supreme Court rules are at odds with modern understandings of property owners’ due-process rights. Others have suggested that such processes imperil the free speech rights of alleged copyright infringers. The Court has yet to decide these issues.