Putting Hanna to Rest in Shady Grove

JurisdictionUnited States,Federal
CitationVol. 44
Publication year2022

44 Creighton L. Rev. 43. PUTTING HANNA TO REST IN SHADY GROVE

PUTTING HANNA TO REST IN SHADY GROVE


Stan Cox (fn*)


Justice Cox, dissenting.

I dissent.

I write separately from and do not join Justice Ginsburg's dissenting opinion, because I believe the result of applying Federal Rule of Civil Procedure 23 to the facts of this case would be unconstitutional. Although it might be possible to engage in the interpretive gymnastics that Justice Ginsburg's opinion exercises, so as to avoid a potential constitutional problem with Rule 23, I do not follow that course for two reasons. First, the more fair and natural reading of Rule 23 would find it presumptively applicable to the facts of this case. But more importantly, we do not write for this case alone, but also to provide guidance to the bar and lower courts about how to resolve potential conflicts between state and federal laws when a case that arises under state law is in federal court. Rather than adopt a policy of construing any federal rule or statute, if at all possible, so as not to conflict with substantive state law, as Justice Ginsburg attempts to do, I think the better course is to provide guidance about how to resolve real conflicts that actually seem to exist.

I.

The Hanna approach to determining the reach of the Federal Rules of Civil Procedure does not describe what we really do or should do, and needs to be abandoned.

The three opinions of the nine Justices purport to apply the guidance provided in Hanna v. Plumer, 380 U.S. 460 (1965), that two very different tests must be employed in federal court for conflicts between state substantive and federal procedural law. Which Hanna test we are supposed to use depends on whether we find that a state law conflicts with a congressionally created procedural law or with a judge created procedural law. Hanna counsels that when we conclude a federal procedural statute or written rule is on point, then the federal law must be applied, regardless of how important or substantive the conflicting state law.(fn1) But when we instead conclude that the same state policy conflicts only with a judicially created, although very important, federal procedural law, the state law will usually be applied under Banna's "relatively unguided" Erie prong. See Hanna, 380 U.S. at 470-71 (limiting Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) to situations where no Federal Rule or federal statute is on point).

These two separate prongs invite us to play games with the facts so as to fit them under one or the other of the two prongs. I believe we instead should use a single test for weighing the importance of state interests. Accordingly, I would abandon Hanna's two-pronged approach.

One reason to abandon Hanna's two-pronged approach is that we do not always apply it when push comes to shove. In Semtek International Inc. v Lockheed Martin Corp., 531 U.S. 497 (2001), we rejected the most natural reading of Federal Rule of Civil Procedure 42(b)- that it was meant to lead to dismissal on the merits-in order to avoid creating a potential Erie conflict. In Walker v. Armco Steel Corp., 446 U.S. 740 (1980), we spoke out of both sides of our mouths about how to determine if a rule is on point. On the one hand, we said that Federal Rules should be given their natural reading and applied if the natural reading indicated they were meant to apply. On the other hand, we said that it would be improper to apply Federal Rules of Civil Procedure without also taking into account their potential impact on important state policies. See Walker, 446 U.S. at 749-50 and n.9.

The result in Walker was that the Federal Rule involved, Federal Rule of Civil Procedure 3, apparently means different things in different situations. The Walker Court held that the word "commenced" in Rule 3 does not mean "tolled" if there is a contrary state statute of limitations requirement. But the Walker Court also seemingly approved of reading Rule 3 to toll an action based on federal law. Cf. id. at 751 n.11 (citing supporting authority, including prior Court dicta, and leaving the issue open, rather than foreclosing it). Why the same word in the same rule should sometimes mean tolled and sometimes not is hardly apparent. The reality is that we are not construing the meaning of the word, but we are weighing the strength of a competing policy.(fn2) We should explicitly acknowledge that.

Our attempts to "read with sensitivity" too easily become back door attempts to resolve the real conflicts between state and federal policies. It is a disservice to the bench and bar if we tell them that we are merely construing words when we are in reality balancing competing interests. We should say what we are really doing so that our tests will provide more accurate guidance.

But the additional problem is that our current Hanna prong for Federal Rules cannot do all the work of deferring to state interests that many of us feel actually needs to be done. The Walker requirement of reading with "sensitivity to important state interests," as phrased and reaffirmed in Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 n.7 (1996), is the primary dispute in the current case between the Scalia plurality and the Ginsburg dissent. The Scalia plurality finds no room to read with sensitivity, and accordingly lets the federal rule-on-point trounce a significant state policy. Justice Ginsburg's dissent strenuously insists that this should not be done. But under Hanna, the only sure tool available to prevent a congressio-nally authorized rule from trouncing a state substantive policy is to find the rule not on point.(fn3) As Justice Stevens and the Scalia plurality point out, Justice Ginsburg's main quarrel is with important state substantive law being trounced, but Hanna sometimes permits that. See e.g., Shady Grove, 130 S. Ct. at 1436-48; id. at 1448-60 (Stevens, j., concurring). And that is why Hanna is ripe for reconsideration in this case.

II.

Conducting Erie inquiry to determine the strength of the state law interest is constitutionally required.

A starting point for our Erie jurisprudence is to re-emphasize that Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), is a constitutionally required decision. This means at the most basic level that Congress cannot tell us to ignore the analysis that Erie says must be conducted.

This point troubled Justice Reed, who concurred in Erie on the ground that the result in Erie, of required deference to state law, could and should be achieved solely via a (re)construction of the Rules of Decision Act, 28 U.S.C. § 1652. His position would have made clear that it was Congress that wanted such deference rather than the Constitution that demanded it. Justice Reed departed from the majority specifically as to the "unconstitutionality of the course pursued" in Swift v. Tyson, 41 U.S. 12 (1842). See Erie, 304 U.S. at 90-91. He emphasized that he thought it "questionable" that Congress would be "without power to declare what rules of substantive law shall govern the federal courts," objecting strongly to this clearly implied conclusion of the Erie majority. Id. at 91-92.(fn4)

In rejecting Justice Reed's approach, which would have required deference to state law only under the Rules of Decision Act, the Erie Court made clear that the deference to state law it insisted upon was constitutionally required. The more difficult issue, under the Erie case law that soon followed, was determining exactly which state laws required constitutional deference.

At a basic level, Erie requires that state "substantive" law must not be significantly frustrated for non-federally based claims that are in federal court, since the only source of the claim is state law. But, setting aside situations like Erie itself, where the issue of the railroad's duty to those walking along its tracks was unambiguously substantive, this Court soon became embroiled in controversies where it was not so obviously apparent whether the conflict with state law should be considered substantive for Erie purposes.

As we emphasized in Guaranty Trust Co. of New York v. York, 326 U.S. 99 (1945), our label of "substantive" for Erie purposes is a conclusion that we make after engaging in analysis, rather than a decision we can make by looking at state law out of context. See York, 326 U.S. at 108-10. Thus, as in York, although a state might label its laws "procedural" under its choice of law precedents, or, as in this case, might place its state law under the procedural parts of its code, this does not necessarily mean we will conclude the state law is non-substantive for Erie purposes.(fn5) We accordingly have read state law more broadly for Erie substantive purposes than just to cover the elements of the claimant's cause of action.(fn6) We emphasized in York that if the state law bore "vitally" rather than merely "negligibly" upon the state law created claim, 326 U.S. at 110, then this aspect of the state law, along with the elements of the claim, would also have to be deferred to under Erie.

The York case regrettably came to be misunderstood as requiring deference to any requirements of state law that would significantly affect outcome, especially when there is no contrary federal policy standing in the way. But as we emphasized in subsequent cases, it was never our intent in York to make the effect on outcome talismanic or determinative. See, e.g., Hanna, 380 U.S. at...

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