Coleman on the Abrogation of Rule 84 and the Appendix of Forms
Brooke Coleman (Seattle) has just posted an essay entitled Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms on SSRN. Here is the abstract:
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof—after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act of 1934. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change to the Rules to which they correspond. Yet, the proposal to abrogate Rule 84 and the Forms has received little attention, with commenters instead focused on proposed discovery amendments. This Essay argues that inattention to the proposed abrogation of Rule 84 and the Forms is a mistake, and that the Forms should not just disappear.
This piece may be downloaded by visiting SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2375042.