The doctrine for deciding when to apply the Federal Rules of Civil Procedure to state claims heard in federal court has become a quagmire of exceptions and ephemeral distinctions, in large measure due to the persistent difficulty courts have in separating substantive rules from procedural ones in an era where special procedural rules are often used as an essential regulatory tool in state governance. This article examines the power of Federal Rules of Civil Procedure to displace contrary state law in diversity cases by focusing on the limited functional competence of the Supreme Court and its Advisory Committee to displace state policymaking decisions through the federal rulemaking process. It demonstrates that applying canons of statutory construction to the Rules Enabling Act that focus upon congressional intent and the political safeguards of federalism reveals the narrowness of the federal rulemaking power in the Enabling Act. It argues that reading the Enabling Act through a presumption against preemption and “clear statement” rules resonates with the core principles underlying the modern understanding of Erie Railroad Co. v. Tompkins.

This article concludes that the Court has no power under the Enabling Act to undermine state policymaking in areas left by Congress to the states that fall within the states’ historic police powers, regardless whether the Rules themselves only purport to regulate procedural matters within the federal courts. In areas within the states’ police power to regulate the general welfare, where Congress has left regulation to the states and the states have chosen to use the litigation process itself to shape social, economic, or political goals, the states’ policies should prevail over the Federal Rules in diversity cases heard in federal court, even though the manner the states have used to effect such governance might conflict with the Federal Rules.


16 N.Y.U. J. Legis. & Pub. Pol'y 187 (2013)


United States, Congress, Civil procedure, Federal courts, Appellate courts, Law -- Interpretation & construction, Police power

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