71 Am. U. L. Rev. 911 (2022).

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The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court—outside of its Article III authority to hear “cases and controversies”—to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government—Congress and the Supreme Court—that both have reasonable claims to some authority in the area.

* John D. Calamari Distinguished Professor of Law, Fordham Law School. Thanks to Tom Bone Lee especially for guidance and engagement on this Article from soup to nuts. Andrew Kent was his usual skeptical and challenging self—and the Article is much better for it. Stephen Burbank, Roger Park, Michael Pardo, and Mike Martin lent their substantial wisdom and expertise. Julia Simon-Kerr, Mathilde Cohen, Minor Myers, Pam Bookman, Russ Pearce, Howie Erichson, Aaron Saiger, Olivier Sylvain, Rebecca Kysar, and Aaron-Andrew Bruhl made important interventions. Rick Hills was a helpful reality check at a helpful time. Adam Weber and Gail McDonald provided stellar research assistance. And, finally, faculty workshops at Touro Law Center and the University of Connecticut Law School helped tremendously as I tried to get this Article over the finish line.

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