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Joshua Carback

Publication Information

44 Mitchell Hamline Law Journal of Public Policy and Practice 105 (2023)

Abstract

Contempt power is one of the most important legacies of English common law in federal common law. Substantively, the contempt power of the United States Courts is relatively similar to that employed by the Court of King’s Bench in the eighteenth century. Procedurally, however, it is quite different. The Rules Enabling Act of 1934 created an interbranch framework for crafting procedural rules for the United States Courts. All three branches of the federal government collaborated under that framework with the intention of rationalizing, systemizing, and delimiting the boundaries of contempt power. The culmination of decades of strenuous rulemaking, unfortunately, was a degree of complexity and confusion. An ever-expanding body of judicial precedents, statutes, and rules transformed what was once a relatively simple exercise of discretion into a sprawling quagmire of intertwined authorities. The time and labor needed to understand and employ contempt power is too great. By my count, federal contempt law now consists of 178 opinions issued by the United States Supreme Court, 182 statutes in the United States Code, 95 regulations in the Code of Federal Regulations, 37 nationwide rules of federal practice and procedure, 10 circuit wide rules governing policy and procedure, and 151 local rules governing practice and procedure. Too much. Far too much. This article therefore proposes a “system update” for the contempt power of the United States Courts. The endgame is simplicity: the federal judiciary can greatly improve itself by clarifying contempt proceedings, eliminating surplusage, and switching the burden of discretion for punishing contempt from prosecutors back to judges.

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