The Court has used radically different techniques when it evaluates the scope of particular rules. When it examines whether there is a conflict between a Federal Rule and a provision of state law (usually, but not always, procedural law), it employs a distinctly read-my-lips approach to determining whether the Federal Rule speaks to the issue with the directness that Hanna v. Plumer (1965) and subsequent cases require. But when the Court considers whether a Federal Rule is consistent with the Rules Enabling Act’s (REA) requirement that no Rule shall “abridge, enlarge or modify” substantive law, a majority of the Justices abandons that direct approach in favor of a far more amorphous consideration, including whether the state rule is “outcome affective” and whether the state rule, even if cast as a procedural rule, nonetheless embodies by implication some substantive state policy.
The result, predictably, is great confusion and very limited direction to the inferior federal courts. The most recent manifestation of the confusion came in Shady Grove Orthopedic Associates, Inc. v. Allstate Insurance Company (2010), where there were split majorities both on the approach the Court should use in REA cases and on how the Court should decide Shady Grove. This article focuses on the Justices’ divergent approaches to REA questions, and concludes that the read-my-lips approach bequeathed by Hanna and its successors is also the proper approach with respect to REA questions.
The reason for this conclusion is that the Court’s mission in deciding both types of Federal Rules cases (1) whether there is a sufficiently direct conflict between federal and state law and 2) whether a Federal Rule violates REA’s language) is fundamentally the same. The question is whether the Rule speaks to a particular issue, and the question is the same whether the issue is substantive or procedural. The Article argues that the Hanna-Walker read-my-lips approach is appropriate in both circumstances. If a Federal Rule does not speak directly to an issue (as the Court decided it did not in Walker v. Armco Steel Co. (1980) (Rule 3 says nothing about the event that stops the running of a state statute of limitations and therefore does not apply to that issue in diversity cases.)) then it does not concern that issue. The Federal Rules mean precisely what they say; inferences are inappropriate. There is no reason to abandon that approach in REA cases.
The advantage of the Hanna-Walker approach is plain. It simplifies the inquiry, brings consistency to the manner in which the Court construes and applies the Federal Rules, and offers far more guidance to the inferior federal courts than does the current regime. While clarity and simplicity are second-order rather than first-order values in the law, the Court should not scorn them unnecessarily.
Doernberg, Donald L.
"Horton the Elephant Interprets the Federal Rules of Civil Procedure: How the Federal Courts Sometimes Do and Always Should Understand Them,"
Hofstra Law Review: Vol. 42
, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol42/iss3/4