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

I. INTRODUCTION 208II. DETERMINING THE VALIDITY OF A FEDERAL RULE 212A. The Debate in Shady Grove 2131. The Plurality Opinion 214a. The Plurality 's Appropriate Reliance on Sibbach 214b. The Plurality 's Underdeveloped Analysis.........2222. Justice Stevens's Concurrence 224a. The Mistaken Focus on Federalism 225b. Justice Stevens 's Flawed Approach to Promoting Federalism 235B. The Lower Courts after Shady Grove 241C. A Framework for Analysis 2491. Classifying a Federal Rule under the Rules Enabling Act-General Considerations 24982. Rule 23 and the REA 257III. THE CONSTRUCTION OF FEDERAL RULES AND STATE LAW.....263A. The Construction of State Statutes 264B. The Construction of Federal Rules 2681. The Proper Role of the Policy as a Rule of Construction 2702. Construing the Certification Requirements of Rule 23 2803. State Law and the Superiority Requirement 285IV. CONCLUSION 291I.INTRODUCTIONBy authorizing the Supreme Court to prescribe rules of practice and procedure1 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 Railroad Co. v. Tompkins,3 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 determinative5 in some sense, 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 doctrine.6 The existential threat posed by and its progeny to the Federal Rules endured until 1965, when the Court decided Lianna v. Plumer,7But 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 as a rule of construction relevant to the interpretation of the Federal Rules.10 The Erie policy refers to the 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 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. …