Academic journal article The Review of Litigation

The Role of State Law in Determining the Construction and Validity of Federal Rules of Civil Procedure

Academic journal article The Review of Litigation

The Role of State Law in Determining the Construction and Validity of Federal Rules of Civil Procedure

Article excerpt

I. INTRODUCTION....................208

II. DETERMINING THE VALIDITY OF A FEDERAL RULE....................212

A. The Debate in Shady Grove....................213

1. The Plurality Opinion....................214

a. The Plurality 's Appropriate Reliance on Sibbach....................214

b. The Plurality 's Underdeveloped Analysis.........222

2. Justice Stevens's Concurrence....................224

a. The Mistaken Focus on Federalism....................225

b. Justice Stevens 's Flawed Approach to Promoting Federalism....................235

B. The Lower Courts after Shady Grove....................241

C. A Framework for Analysis....................249

1. Classifying a Federal Rule under the Rules Enabling Act-General Considerations....................2498

2. Rule 23 and the REA....................257

III. THE CONSTRUCTION OF FEDERAL RULES AND STATE LAW.....263

A. The Construction of State Statutes....................264

B. The Construction of Federal Rules....................268

1. The Proper Role of the Erie Policy as a Rule of Construction....................270

2. Construing the Certification Requirements of Rule 23....................280

3. State Law and the Superiority Requirement....................285

IV. CONCLUSION....................291

I.INTRODUCTION

By authorizing the Supreme Court to prescribe "general rules of practice and procedure"1 in civil actions, the Rules Enabling Act of 1934 sought to encourage development of a uniform federal law of procedure.2 But although the Rules Enabling Act ("REA") has been the law for more than seventy-five years, the proper relationship between the Federal Rules of Civil Procedure ("Federal Rules") and arguably conflicting state law remains remarkably unsettled and highly controversial. I argue in this paper that courts and commentators have given excessive deference to state law both in construing the Federal Rules and in determining their validity.

Much of the blame for this state of affairs can be ascribed to the fact that the Federal Rules went into effect the same year that the Court decided Erie Railroad Co. v. Tompkins,3 Erie at its most sweeping can be read to require application of state rather than federal law whenever the choice between the two would be outcome determinative.4 Because virtually "every procedural variation is outcome determinative"5 in some sense, Erie and its progeny arguably called into question the validity of Federal Rules in conflict with state law, a problem the Court addressed primarily by construing Federal Rules to avoid conflict with the Erie doctrine.6 The existential threat posed by Erie and its progeny to the Federal Rules endured until 1965, when the Court decided Lianna v. Plumer,7

But even after Hanna held that the validity of Federal Rules was not governed by Erief the Court continued to construe Federal Rules narrowly so as to avoid conflicts with state law 9 In its most recent cases, the Court has identified the Erie policy as a rule of construction relevant to the interpretation of the Federal Rules.10 The "Erie policy" refers to the policy which has its origin in Erie's discussion of the social and political defects of Swift v. Tyson,11 and which the modified outcome-determination test of Hanna12 is designed to implement.13 Used as a rule of construction, the Erie policy counsels a narrow reading of a Federal Rule (or statute) in order to avoid potential conflict with outcome-determinative state law.

State law has also continued to play a role in determining the validity of Federal Rules. In a remarkably influential article, John Fiait Ely argued shortly after Hanna that a Federal Rule should be deemed invalid as applied when it conflicts with state law enacted for one or more nonprocedural reasons.14 And some have interpreted the Court's post-Hanna decisions as sympathetic to Professor Ely's general approach. …

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