Choice of Law and the Proposed Federal Rules of Evidence: New Perspectives

On November 20, 1972, the Supreme Court promulgated a new federal evidentiary code,' to become effective July 1, 1973, unless Congress took supervening action. 2 It was then for Congress to determine, if only by inaction, whether the proposed Federal Rules of Evidence would control trials of cases in federal courts.It was widely anticipated that Congress would, as a matter of course, allow the proposed rules to take effcct. 3 However, despite the submission to the profession of substantially similar preliminary drafts in 19691 and in 1971, 5 the proposed rules have recently become the focus of criticism.The controversy centers for the most part upon two issues: first, whether procedural evidentiary rules have been used to effect substantive changes in the law; and second, whether the new rules override conflicting state rules thought to be substantive in nature in cases in which state law supplies the rule of decision. 6 In response to this controversy Congress has passed a bill postponing the rules'