28 APPENDIX U.S.C. § 23
NOTES OF ADVISORY COMMITTEE ON RULES-1967The rule is the same as Supreme Court Rule 49, as amended on June 12, 1967, effective October 2, 1967.
NOTES OF ADVISORY COMMITTEE ON RULES-1986 AMENDMENTThe amendments to Rules 23(b) and (c) are technical. No substantive change is intended.
COMMITTEE NOTES ON RULES-1998 AMENDMENT The language and organization of the rule are amended to make the rule more easily understood. In addition to changes made to improve the understanding, the Advisory Committee has changed language to make style and terminology consistent throughout the appellate rules. These changes are intended to be stylistic only.Subdivison (d). The current rule states that the initial order governing custody or release "shall govern review" in the court of appeals. The amended language says that the initial order generally "continues in effect" pending review.When Rule 23 was adopted it used the same language as Supreme Court Rule 49, which then governed custody of prisoners in habeas corpus proceedings. The "shall govern review" language was drawn from the Supreme Court Rule. The Supreme Court has since amended its rule, now Rule 36, to say that the initial order "shall continue in effect" unless for reasons shown it is modified or a new order is entered. Rule 23 is amended to similarly state that the initial order "continues in effect." The new language is clearer. It removes the possible implication that the initial order created law of the case, a strange notion to attach to an order regarding custody or release.