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The Rules Enabling Act (the "REA") authorizes the Supreme Court to prescribe "general rules of practice and procedure" as long as those rules do not "abridge, enlarge or modify" any substantive right.' The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure ("Civil Rules"). In order to avoid REA concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court's approach in these cases. The literature frequently argues for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Federal Rules of Criminal Procedure ("Criminal Rules'), however, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA. This article argues that this approach is a mistake. Even under the most constrained view of the REA, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the REA and the Civil Rules, Professor Minzer provides a framework for applying the REA to the Criminal Rules and examine the constraints of the REA with respect to four of the Criminal Rules that face validity challenges. In addition to identifying these REA issues, this article proposes potential interpretations of these Criminal Rules that can reduce their substantive effect by either reading them narrowly or grounding the doctrines in federal common law, rather than the REA.

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University of Richmond Law Review





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