Document Type


Publication Title

Texas Law Review



Publication Date



Federal Rules of Evidence, separation of powers, federal courts


This Article focuses on the question whether, or to what extent, a federal court is bound by the explicit and implicit restrictions placed by Congress on a court's power to admit evidence. This is a question that did not arise prior to adoption of the Federal Rules of Evidence because previous prospective rulemaking in the procedural area was in truth a judicial exercise. Although Congress had an implicit veto power over rules of procedure prescribed by the Supreme Court, it never exercised that power. Thus, a lower court's decision to disregard a rule of procedure raised, as a practical matter, only problems of the relations between superior and inferior courts. On the other hand, disregard of, or substitution for, a Federal Rule of Evidence involves relations between coordinate branches of government. The question did not arise before comprehensive procedural rulemaking started in the 1930's because the earlier evidence statutes were generally remedial measures, adopted in a day when courts were more wed to strict stare decisis even in procedural matters. In that context the courts were willing to defer to the legislature in making reforms that they did not consider appropriate subjects for judicial action. Now, however, the courts do not take such a limited view of their own competence. Furthermore, in adopting evidence rules the legislature has generally been more "conservative;" the courts adopted the "reform" positions.

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Evidence Commons