Federal regulation of state court procedures.

• Author: Bellia, Anthony J., Jr.

1. INTRODUCTION

   The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. In 1791, James Madison was asked whether a federal law operated to repeal certain state court rules of procedure.(1) His response was that "[t]his question probably involves several very nice points."(2) If he meant constitutional points, the points remain "very nice" today. In 1999, a federal district court construing a federal law regulating state court procedures mused that "whether Congress actually does have the power to regulate state procedural law and state courts' power to govern the progression of cases on their own dockets" is an "intriguing but perplexing issue."(3)

   In recent years issues of federalism have headlined the Supreme Court's docket.(4) The issues have called upon the Court not to sand away rough edges, but to define basic spheres of state and federal authority. The expansion of the commerce power in the twentieth century and its exercise in the last decade have raised fundamental issues regarding the balance of power between the federal and state governments. One issue decided in the last decade was whether Congress has authority to "commandeer" state legislatures to enact or enforce federal law. In 1992, in New York v. United States,(5) the Court held 5-4 that Congress lacks such authority, striking down a federal law that required the states to provide for the disposal of radioactive waste generated within their borders.(6) Another issue the Court recently decided was whether Congress has authority to "commandeer" state executives to enforce federal law. In 1997, in Printz v. United States,(7) the Court held 5-4 that Congress lacks this authority, striking down a federal law that required local sheriffs to conduct background checks on prospective handgun purchasers.(8) New York and Printz resolved two of what have been described as the "oldest question[s] of constitutional law."(9)

   If Congress lacks authority to "commandeer" state legislatures and state executives, what authority does it have to "commandeer" state judiciaries? While the Court has been rebuffing Congress's attempts to use state legislatures and executives to implement federal law, Congress has turned its attention to regulating the state courts. In recent years, Congress has considered several bills, and enacted a few of them, seeking to regulate interstate commerce by regulating the way state courts conduct litigation.(10) The Y2K Act of 1999 (Y2K Act),(11) for example, requires state courts to change the manner in which they adjudicate certain classes of claims, including claims arising under state law. The Universal Tobacco Settlement Act of 1997 would have forbidden state courts to consolidate certain classes of state law claims.(12) Federal laws regulating state court procedures stand at the next frontier of federalism. In hearings on the tobacco bill, Professor Laurence Tribe expressed the opinion that federal regulation of state court procedures raises "serious questions" under the Constitution.(13) Professor Tribe is not the only scholar to have questioned whether such regulations are constitutional.(14) I seek here an answer to the constitutional question.

   In Part II, I describe what I call the new federal regulation of state courts: regulation of the procedures by which states enforce rights of action that they created. I contrast the new federal regulation with federal regulation of the procedures by which state courts enforce rights of action created by federal law. It is well-established that state courts must enforce federal rights of action if their jurisdiction is adequate and appropriate. State courts also must enforce federal procedural rules that are part and parcel of an adjudicated federal claim. Federal regulation of the procedures by which state courts enforce not federal but state rights of action raises distinct constitutional problems.

   In Part III, I address the constitutional problems raised by the new federal regulation of state courts. Congress has considered and enacted the new regulation pursuant to its power to regulate interstate commerce. I first address whether a regulation of court procedures qualifies as a regulation of "commerce." Here, two questions arise: one, whether the regulated activity is sufficiently economic in nature, and, two, whether allowing Congress to regulate state court procedures in some cases means that Congress may regulate state court procedures in all cases. Assuming the new regulation passes Article I scrutiny, it next must be asked whether the Tenth Amendment bars Congress from regulating state court procedures. Does a state have sovereign authority to regulate the procedures by which its courts enforce the rights that it creates?

   I argue that the answer to this question may be found in traditional conflict-of-laws principles. Members of the Founding generation described the obligation of state courts to hear federal claims in conflict-of-laws terms. Under the traditional vested-rights approach to conflict of laws, each jurisdiction had sovereign authority to apply its own "procedure" in its own courts. In Testa v. Katt,(15) the Court rejected the conflicts analogy in regard to whether state courts must enforce federal rights of action. It was argued in Testa that state courts have discretion to refuse to enforce certain kinds of federal actions, just as they have discretion under conflicts principles to refuse to enforce certain kinds of foreign actions. The Court held in Testa that state courts have no such discretion. As I argue, however, members of the Founding generation did not invoke the conflicts paradigm so much to describe whether state courts must enforce federal actions, but to describe the modes of proceeding and remedies by which they would enforce them. The conflicts paradigm continues today to describe when state courts must apply federal procedures in adjudicating federal claims. It is therefore appropriate to analyze the constitutional question raised here--whether Congress may regulate state court procedures in state law cases--with reference to conflict-of-laws principles. Under traditional conflicts principles, I argue, Congress has no authority to prescribe procedural rules for state courts to follow in state law cases.

   In Part IV, I address the prudential value of this understanding of the Constitution. Exclusive state authority over state court enforcement of state law claims, I argue, serves the functional interests of Congress and the states in state court litigation. A state rule of civil procedure does not operate in isolation. It operates in conjunction with other rules in the state's procedural code. A state code of procedure, in turn, is designed to enforce the state's particular body of substantive rights. Injecting isolated rules of procedure into fifty different procedural codes could create myriad procedural and substantive anomalies. Finally, I argue that exclusive state authority over state court enforcement of state law claims serves the normative federalism values of political accountability, participation, and diversity.(16)

2. FEDERAL AUTHORITY OVER STATE COURTS AND THE NEW FEDERAL REGULATION

   Suppose Congress passed a law providing that, in cases affecting interstate commerce, even in cases arising under state law, state courts must enforce the following rules: Rule 1--An answer or motion to dismiss must be filed within five days after service of a complaint; Rule 2--Discovery must be completed within two weeks after service of a complaint; Rule 3--Summary judgment motions, if any, must be filed within three weeks after service of a complaint; and Rule 4--Trial, if any, shall commence within four weeks after service of a complaint. The statute states that its purpose is to lessen the economic burden of protracted litigation on interstate commerce. Would such a statute be constitutional?

   1. The New Federal Regulation of State Court Procedures

      The new federal regulation does nothing as stark as this hypothetical law would do. Like the hypothetical law, however, it does change the rules of civil procedure that govern enforcement of certain state law claims in state court. The Y2K Act,(17) for example, is titled "An Act To Establish Certain Procedures for Civil Actions Brought for Damages Relating to [Y2K Failures]."(18) Congress was concerned that many computers would "read dates in the year 2000 and thereafter as if those dates represent the year 1900" or would "fail to process dates after December 31, 1999."(19) This problem, Congress found, could "prompt a significant volume of litigation, much of it insubstantial."(20) Accordingly, Congress deemed it "appropriate" to "enact legislation to assure that the year 2000 problems ... do not unnecessarily disrupt interstate commerce."(21)

      The Y2K Act applies to civil actions based on Y2K failures commenced not only in federal court, but also in state court.(22) Among the "procedures for civil actions" that the Y2K Act prescribes is a prelitigation notice requirement. The Act requires any prospective plaintiff in a Y2K action to send written notice to each prospective defendant before commencing suit. The defendant then has thirty days to respond and sixty days to remedy the problem. Only after the "remediation period" may the plaintiff sue the defendant.(23) The Y2K Act also contains heightened pleading requirements. A Y2K plaintiff who requests damages must file with the complaint a statement specifying the nature and amount of damages requested and the factual basis for requesting them.(24) A Y2K plaintiff who alleges a material defect in a product or service must file a statement specifying the manifestations of the material defect and facts supporting the conclusion that the defects are material.(25) A Y2K plaintiff asserting a claim requiring proof of state of mind must file a statement specifying facts "giving rise...