The Three Commandments of Amending the Federal Rules of Evidence

The Rules have been amended many times in the forty years since they were enacted. Unlike the original drafting process, which necessarily involved consideration of the Rules as a whole, each round of amendments was limited to a specific Rule or set of Rules. This particularized focus is not myopic, but unavoidable; the Rules are numerous and complex, and the time of the Advisory Committee and Congress is limited. But after more than forty years, a broader perspective is possible.

The purpose of this Article is to provide a small bit of that perspective, which this Article distills into three “commandments” for amending the Rules. After a brief history of the residual exception and a description of the proposed amendment, this Article considers the extent to which that proposal complies with these commandments.