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

By Woolley, Patrick | The Review of Litigation, July 1, 2016 | Go to article overview

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


Woolley, Patrick, The Review of Litigation


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.