Sonia, What's a Nice Person Like You Doing in Company Like That?

• Publication year: 2022

44 Creighton L. Rev. 107. SONIA, WHAT'S A NICE PERSON LIKE YOU DOING IN COMPANY LIKE THAT?

SONIA, WHAT'S A NICE PERSON LIKE YOU DOING IN COMPANY LIKE THAT?

Thomas D. Rowe, jr. (fn*)

Justice Rowe, concurring in part and concurring in the judgment.

No process for making federal procedural rules, however laudable, should be able to override substantive rights without positive involvement by politically accountable actors. That constraint is not only wise; it is also the mandate of the Rules Enabling Act ("Act" or "REA"), which specifies that Federal Rules promulgated pursuant to the Act-such as Federal Rule of Civil Procedure 23, at issue in this case-are not to "abridge, enlarge or modify any substantive right."(fn1) That limit is also why the plurality is profoundly mistaken, or at best dangerously misleading, when it says that a Federal Rule validly adopted under the Act's authority "to prescribe general rules of practice and procedure"(fn2) for the federal trial and appellate courts is "valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights."(fn3)

The REA process is an admirable one. Committees of judges, practitioners, and academics, appointed by the Chief Justice for their expertise and served by eminent academic Reporters who are responsible for proposal drafts and initial explanations, put forth and review possible changes in the various sets of Federal Rules. The process is open and deliberate, with notice, opportunity for comment, and public hearings, and often leads to redrafting with further vetting of revised proposals. The official organization of the federal judiciary, the Judicial Conference of the United States, decides whether to recommend that the Supreme Court adopt rule amendments that have made it through these stages. If it so recommends, this Court-acting in a legislative capacity-decides whether to adopt the proposed amendments; if it adopts them, Congress has at least seven months to decide whether to block, delay, or alter the adopted amendments. But doing so takes an Act of Congress passed by both Houses and signed by the President, which happens rarely in this connection. Absent such action, the amendments adopted by the Supreme Court take effect.(fn4)

An admirable process, indeed. But no one officially involved in it ever, in his or her capacity as a committee member or federal judge, faces any voters or reports to anyone who does. There is, as Europeans sometimes say of European-Union processes, a "democratic deficit" here. To say that is not to condemn the REA process, which is appropriately designed as a largely technocratic rather than democratic one. The process is a subordinate form of lawmaking, operating under a partial delegation of Congress's undoubted power to make laws governing the jurisdiction of and procedure in the federal courts. That delegation comes with a limit against having proscribed effects on substantive rights, which does not constrain Congress if it chooses to exercise its rulemaking power on its own. Only a rule adopted with Congress's positive action, rather than its passive acquiescence, should be able thus to affect substantive rights.

Fortunately, the plurality's view that any Rule validly promulgated under the REA's general authority, in 28 U.S.C. § 2072(a), "to prescribe general rules of practice and procedure" for cases in the federal district and appeals courts is "valid in all jurisdictions, with respect to all claims, regardless of its incidental effect upon state-created rights," lacks a majority and is therefore not authoritative. Indeed, the Court's divided opinions in this case mean that virtually no new Erie(fn5) law is made, save for the highly limited (and correct) holding by a majority that Federal Rule 23, authorizing class actions when certain criteria are met, and the New York provision at issue, mostly banning class actions for statutory penalties or minimum-recovery measures,(fn6) do conflict.

Further, the plurality's apparently extreme view on universal validity of generally valid Federal Rules is no more required by precedent than it is authoritative. Sibbach v. Wilson and Co.(fn7) did not face the...