The Judicial Conference of the United States is charged with “carry[ing] on a continuous study of the operation and effect” of the national rules of court procedure promulgated under the Rules Enabling Act. The cycle of rulemaking regularly produces amendments that supersede or abrogate rules. Do the now-dead versions of a rule have any continuing significance? Sometimes a prior practice lives on, despite the adoption of a rule designed specifically to supplant it. This Piece takes as an example the persistence, in a particular federal circuit, of the practice of dismissing a civil appeal rather than staying it pending the disposition of postjudgment motions. Federal Rule of Appellate Procedure 4(a)(4) used to require such dismissals, but since 1993 the Rule has mandated the opposite. This Piece designates the pre-1993 Rule 4(a)(4) a “phantom rule” and argues that the phantom in question should be exorcised because the old version of the rule conflicts with the text and purpose of current law. The Piece notes, however, that not all such phantoms are equally undesirable. Now-abrogated Federal Rule of Civil Procedure 84 and the old Appendix of Forms provide examples of no-longer-extant rules that may continue to tell us something about the meaning of current law.
Struve, Catherine T., "Phantom Rules" (2017). Faculty Scholarship. 1755.