By Martin H. Redish & Dennis Murashko. Full text here.
For more than seven decades since the passage of the Rules Enabling Act, courts and commentators have struggled to define the boundaries of what rules the Supreme Court can and cannot promulgate. We undertake here to explain that lack of success and at the same time to glean from our analysis an important lesson in statutory interpretation. Our explanation focuses on two related observations: First, and perhaps most importantly, the Act’s sparse language is susceptible to three alternative and textually plausible constructions. And second, previous interpreters of the Act did not pay sufficient attention to the general theory of statutory interpretation that must guide interpretive choices. We conclude that a proper understanding of the theory of statutory interpretation dictates adoption of one specific construction of the Act—what can best be called the “incidental-effects” approach. Under this interpretive model, the Court is allowed to promulgate rules that may impact substantive rights, but that do so, at most, only incidentally—in other words, only when the primary goal of the rule is to regulate procedure, not substance. We defend this construction by employing a theory of statutory interpretation that directs the interpreter to construe ambiguous text in light of objectively determined background purposes forming a foundation for a particular legislation. In the process, we also carefully explain why all other theories come up short. Notably, the interpretive lesson we draw in this Article goes well beyond the Rules Enabling Act, applying with equal force to construction of other ambiguous statutes.