With regard to the constitutionality of the proposal, the first question that occurs to every lawyer is whether the legislature may delegate the rule-making power to the courts. It seems strange that, in view of the history of English and American procedural law, this question should occur to anyone as presenting a serious objection, but the reason is, of course, that we have got so far away from the original method of regulating court procedure that our inclination is to believe that legislative codes are the only way in which court procedure can be prescribed. As a matter of fact, as pointed out by Roscoe Pound, when codes of procedure were first enacted by legislatures, many judges even went so far as to render dicta to the effect that the legislature had no power to touch the rules of court.
Charles H. Paul,
The Rule-Making Power of the Courts,
1 Wash. L. Rev.
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