Federal Regulation of State Court Procedures

Article excerpt


The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. In 1791, James Madison was asked whether a federal law operated to repeal certain state court rules of procedure.(1) His response was that "[t]his question probably involves several very nice points."(2) If he meant constitutional points, the points remain "very nice" today. In 1999, a federal district court construing a federal law regulating state court procedures mused that "whether Congress actually does have the power to regulate state procedural law and state courts' power to govern the progression of cases on their own dockets" is an "intriguing but perplexing issue."(3)

In recent years issues of federalism have headlined the Supreme Court's docket.(4) The issues have called upon the Court not to sand away rough edges, but to define basic spheres of state and federal authority. The expansion of the commerce power in the twentieth century and its exercise in the last decade have raised fundamental issues regarding the balance of power between the federal and state governments. One issue decided in the last decade was whether Congress has authority to "commandeer" state legislatures to enact or enforce federal law. In 1992, in New York v. United States,(5) the Court held 5-4 that Congress lacks such authority, striking down a federal law that required the states to provide for the disposal of radioactive waste generated within their borders.(6) Another issue the Court recently decided was whether Congress has authority to "commandeer" state executives to enforce federal law. In 1997, in Printz v. United States,(7) the Court held 5-4 that Congress lacks this authority, striking down a federal law that required local sheriffs to conduct background checks on prospective handgun purchasers.(8) New York and Printz resolved two of what have been described as the "oldest question[s] of constitutional law."(9)

If Congress lacks authority to "commandeer" state legislatures and state executives, what authority does it have to "commandeer" state judiciaries? While the Court has been rebuffing Congress's attempts to use state legislatures and executives to implement federal law, Congress has turned its attention to regulating the state courts. In recent years, Congress has considered several bills, and enacted a few of them, seeking to regulate interstate commerce by regulating the way state courts conduct litigation.(10) The Y2K Act of 1999 (Y2K Act),(11) for example, requires state courts to change the manner in which they adjudicate certain classes of claims, including claims arising under state law. The Universal Tobacco Settlement Act of 1997 would have forbidden state courts to consolidate certain classes of state law claims.(12) Federal laws regulating state court procedures stand at the next frontier of federalism. In hearings on the tobacco bill, Professor Laurence Tribe expressed the opinion that federal regulation of state court procedures raises "serious questions" under the Constitution.(13) Professor Tribe is not the only scholar to have questioned whether such regulations are constitutional.(14) I seek here an answer to the constitutional question.

In Part II, I describe what I call the new federal regulation of state courts: regulation of the procedures by which states enforce rights of action that they created. I contrast the new federal regulation with federal regulation of the procedures by which state courts enforce rights of action created by federal law. It is well-established that state courts must enforce federal rights of action if their jurisdiction is adequate and appropriate. State courts also must enforce federal procedural rules that are part and parcel of an adjudicated federal claim. Federal regulation of the procedures by which state courts enforce not federal but state rights of action raises distinct constitutional problems. …