Document Type

Working Paper

Publication Date

11-2014

Keywords

Rules Enabling Act, statutory interpretation, judicial doctrine, federalism, separation of powers, Federal Rules, Erie Doctrine

Abstract

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, or legal rule, and must pay their lawyers to argue for or against all three possibilities. The Court’s most recent pronouncement on the issue, in the Shady Grove case, may have made the debate permanent, by turning it into one of constitutional principle as much as dueling theories of statutory interpretation, effectively disabling the Enabling Act as a rule of law. When something is broken beyond repair it is time to buy a new one, and when a judicial doctrine is confused beyond clarification it is time to start over. Or, at least that is what I shall argue.

Disciplines

Civil Procedure | Constitutional Law | Litigation | Rule of Law