Taking "substantive rights" (in the Rules Enabling Act) more seriously

Notre Dame Law Review

Volumn 74, Issue 1, 1998, Pages 47-121

  Kelleher, Leslie M ^a  

^a UNIVERSITY OF RICHMOND   (United States)

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EID: 0032276392     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (391)

1. John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 724 (1974) (citation omitted).
2. 28 U.S.C. § 2072 (1994).
3. A reference to a Rule is a reference to a Federal Rule of Civil Procedure or other rule promulgated pursuant to the Rules Enabling Act.
4. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1041 (1989).
5. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1041 (1989).
6. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1041 (1989).
7. See, e.g., Thomas D. Rowe, Jr., Not Bad for Government Work: Does Anyone Else Think the Supreme Court is Doing a Halfway Decent Job in its Erie-Hanna Jurisprudence?, 73 NOTRE DAME L. REV. 963, 978 (1998); Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 ARIZ. L. REV. 461, 474 & n.78 (1997); Ralph U. Whitten, Developments in the Erie Doctrine: 1991, 40 AM. J. COMP. L. 967, 970 (1992); Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L.J. 1012, 1041 (1989).
8. See Stephen B. Burbank, Sanctions in the Proposed Amendments to the Federal Rules of Civil Procedure: Some Questions About Power, 11 HOFSTRA L. REV. 997, 1006-07 (1983) ("As long as Sibbach v. Wilson & Co. remains law and the Court that promulgates Federal Rules and amendments has the final word on their validity, disputations regarding validity and invalidity are likely to be of purely academic interest . . . .") (citations omitted).
9. See, e.g., Kamen v. Kemper Fin. Serv., 500 U.S. 90 (1991); see aho Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2248 (1997); Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2219 n.7 (1996);.
10. Rules Enabling Act, 28 U.S.C. § 2072(a) (1994).
11. 28 U.S.C. § 2072(b) (1994).
12. Linda S. Mullenix, The Constitutionality of the Proposed Rule 23 Class Action Amendments, 39 ARIZ. L. REV. 615, 618 (1997).
13. Ely, supra note 1, at 724.
14. See Laurens Walker, A Comprehensive Reform For Federal Civil Rulemaking, 61 GEO. WASH. L. REV. 455 (1993).
15. 117 S. Ct. 2231 (1997).
16. See, e.g., Symposium, Rule 23: Class Actions at the Crossroads, 39 ARIZ. L. REV. 406 (1997); George L. Priest, Procedural Versus Substantive Controls of Mass Tort Class Actions, 26 J. LEGAL STUD. 521 (1997). Much of the controversy concerned a proposed amendment to Rule 23(b)(4), which would have permitted class certification for the purposes of settlement only, "even though the requirements of subdivision (b) (3) might not be met," and thus overrule the Third Circuit's ruling in Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (3d Cir. 1996), rev'd sub nom., Amchem Products Inc. v. Windsor, 117 S. Ct. 2231 (1997). See Proposed Amendment to Fed. R. Civ. P. 23(b); INS v. Yang, 117 S. Ct. 350, 352-59 (1996). That proposal, which was sent back to the Advisory Committee by the Standing Committee after the period for public comment, was not sent forward again by the Advisory Committee, in light of the Supreme Court's decision in Amchem. The issue has been referred by the Advisory Committee to its Mass Torts Working Group. See Report of the Advisory Committee on Civil Rules 41-42 (Dec. 8, 1997). For a more recent discussion of the Amchem case and its impact on the proposals to amend Rule 23, see Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2305-10 (1998).
17. See, e.g., Symposium, Rule 23: Class Actions at the Crossroads, 39 ARIZ. L. REV. 406 (1997); George L. Priest, Procedural Versus Substantive Controls of Mass Tort Class Actions, 26 J. LEGAL STUD. 521 (1997). Much of the controversy concerned a proposed amendment to Rule 23(b)(4), which would have permitted class certification for the purposes of settlement only, "even though the requirements of subdivision (b) (3) might not be met," and thus overrule the Third Circuit's ruling in Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (3d Cir. 1996), rev'd sub nom., Amchem Products Inc. v. Windsor, 117 S. Ct. 2231 (1997). See Proposed Amendment to Fed. R. Civ. P. 23(b); INS v. Yang, 117 S. Ct. 350, 352-59 (1996). That proposal, which was sent back to the Advisory Committee by the Standing Committee after the period for public comment, was not sent forward again by the Advisory Committee, in light of the Supreme Court's decision in Amchem. The issue has been referred by the Advisory Committee to its Mass Torts Working Group. See Report of the Advisory Committee on Civil Rules 41-42 (Dec. 8, 1997). For a more recent discussion of the Amchem case and its impact on the proposals to amend Rule 23, see Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2305-10 (1998).
18. See, e.g., Symposium, Rule 23: Class Actions at the Crossroads, 39 ARIZ. L. REV. 406 (1997); George L. Priest, Procedural Versus Substantive Controls of Mass Tort Class Actions, 26 J. LEGAL STUD. 521 (1997). Much of the controversy concerned a proposed amendment to Rule 23(b)(4), which would have permitted class certification for the purposes of settlement only, "even though the requirements of subdivision (b) (3) might not be met," and thus overrule the Third Circuit's ruling in Georgine v. Amchem Products, Inc., 83 F.3d 610, 626 (3d Cir. 1996), rev'd sub nom., Amchem Products Inc. v. Windsor, 117 S. Ct. 2231 (1997). See Proposed Amendment to Fed. R. Civ. P. 23(b); INS v. Yang, 117 S. Ct. 350, 352-59 (1996). That proposal, which was sent back to the Advisory Committee by the Standing Committee after the period for public comment, was not sent forward again by the Advisory Committee, in light of the Supreme Court's decision in Amchem. The issue has been referred by the Advisory Committee to its Mass Torts Working Group. See Report of the Advisory Committee on Civil Rules 41-42 (Dec. 8, 1997). For a more recent discussion of the Amchem case and its impact on the proposals to amend Rule 23, see Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2305-10 (1998).
19. Pub. L. No. 104-67, 109 Stat. 737 (1995). The Act became law on December 22, 1995, when the Senate overrode a presidential veto. 141 CONG. REC. S19,180 (daily ed. Dec. 22, 1995). The House had voted to override two days earlier. 141 CONG REC. H15,223-24 (daily ed. Dec. 20, 1995). The president's veto message can be found at 141 CONG. REC. H15,214-15 (daily ed. Dec. 20, 1995). On the background to the Act, see generally, John W. Avery, Securities Litigation Reform: The Long and Winding Road to the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 335 (1996); Joel Seligman, The Private Securities Reform Act of 1995, 38 ARIZ. L. REV. 717 (1996).
20. Pub. L. No. 104-67, 109 Stat. 737 (1995). The Act became law on December 22, 1995, when the Senate overrode a presidential veto. 141 CONG. REC. S19,180 (daily ed. Dec. 22, 1995). The House had voted to override two days earlier. 141 CONG REC. H15,223-24 (daily ed. Dec. 20, 1995). The president's veto message can be found at 141 CONG. REC. H15,214-15 (daily ed. Dec. 20, 1995). On the background to the Act, see generally, John W. Avery, Securities Litigation Reform: The Long and Winding Road to the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 335 (1996); Joel Seligman, The Private Securities Reform Act of 1995, 38 ARIZ. L. REV. 717 (1996).
21. Pub. L. No. 104-67, 109 Stat. 737 (1995). The Act became law on December 22, 1995, when the Senate overrode a presidential veto. 141 CONG. REC. S19,180 (daily ed. Dec. 22, 1995). The House had voted to override two days earlier. 141 CONG REC. H15,223-24 (daily ed. Dec. 20, 1995). The president's veto message can be found at 141 CONG. REC. H15,214-15 (daily ed. Dec. 20, 1995). On the background to the Act, see generally, John W. Avery, Securities Litigation Reform: The Long and Winding Road to the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 335 (1996); Joel Seligman, The Private Securities Reform Act of 1995, 38 ARIZ. L. REV. 717 (1996).
22. Pub. L. No. 104-67, 109 Stat. 737 (1995). The Act became law on December 22, 1995, when the Senate overrode a presidential veto. 141 CONG. REC. S19,180 (daily ed. Dec. 22, 1995). The House had voted to override two days earlier. 141 CONG REC. H15,223-24 (daily ed. Dec. 20, 1995). The president's veto message can be found at 141 CONG. REC. H15,214-15 (daily ed. Dec. 20, 1995). On the background to the Act, see generally, John W. Avery, Securities Litigation Reform: The Long and Winding Road to the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 335 (1996); Joel Seligman, The Private Securities Reform Act of 1995, 38 ARIZ. L. REV. 717 (1996).
23. Pub. L. No. 104-67, 109 Stat. 737 (1995). The Act became law on December 22, 1995, when the Senate overrode a presidential veto. 141 CONG. REC. S19,180 (daily ed. Dec. 22, 1995). The House had voted to override two days earlier. 141 CONG REC. H15,223-24 (daily ed. Dec. 20, 1995). The president's veto message can be found at 141 CONG. REC. H15,214-15 (daily ed. Dec. 20, 1995). On the background to the Act, see generally, John W. Avery, Securities Litigation Reform: The Long and Winding Road to the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 335 (1996); Joel Seligman, The Private Securities Reform Act of 1995, 38 ARIZ. L. REV. 717 (1996).
24. See Avery, supra note 14, at 339-54; Richard M. Phillips & Gilbert C. Miller, The Private Securities Litigation Reform Act of 1995: Rebalancing Litigation Risks and Rewards for Class Action Plaintiffs, Defendants and Lawyers, 51 BUS. LAW. 1009, 1018-25 (1996); Richard H. Walker et al., The New Securities Class Action: Federal Obstacles, State Detours, 39 ARIZ. L. REV. 641 (1997).
25. See Avery, supra note 14, at 339-54; Richard M. Phillips & Gilbert C. Miller, The Private Securities Litigation Reform Act of 1995: Rebalancing Litigation Risks and Rewards for Class Action Plaintiffs, Defendants and Lawyers, 51 BUS. LAW. 1009, 1018-25 (1996); Richard H. Walker et al., The New Securities Class Action: Federal Obstacles, State Detours, 39 ARIZ. L. REV. 641 (1997).
26. Whether and to what extent such abuse occurred was hotly debated. At a Senate hearing on the issue, Subcommittee Chairman Dodd noted that "we found no agreement on whether there is in fact a problem." Private Litigation Under the Federal Securities Laws: Hearings Before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 103rd Cong., 1-3 (1993). See also Joel Seligman, The Merits Do Matter: A Comment on Professor Gntndfest's "Disimplying Private Rights of Action Under the Federal Securities Laws: The Commission's Authority," 108 HARV. L. REV. 438 (1994) (arguing that evidence was insufficient to justify increased burdens on securities litigation). Compare Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991) (reporting a study from which she concludes that the settlement value of litigation is not affected by its merits so much as by the nuisance value of the lawsuit once commenced).
27. Whether and to what extent such abuse occurred was hotly debated. At a Senate hearing on the issue, Subcommittee Chairman Dodd noted that "we found no agreement on whether there is in fact a problem." Private Litigation Under the Federal Securities Laws: Hearings Before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 103rd Cong., 1-3 (1993). See also Joel Seligman, The Merits Do Matter: A Comment on Professor Gntndfest's "Disimplying Private Rights of Action Under the Federal Securities Laws: The Commission's Authority," 108 HARV. L. REV. 438 (1994) (arguing that evidence was insufficient to justify increased burdens on securities litigation). Compare Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991) (reporting a study from which she concludes that the settlement value of litigation is not affected by its merits so much as by the nuisance value of the lawsuit once commenced).
28. Whether and to what extent such abuse occurred was hotly debated. At a Senate hearing on the issue, Subcommittee Chairman Dodd noted that "we found no agreement on whether there is in fact a problem." Private Litigation Under the Federal Securities Laws: Hearings Before the Subcommittee on Securities of the Senate Committee on Banking, Housing, and Urban Affairs, 103rd Cong., 1-3 (1993). See also Joel Seligman, The Merits Do Matter: A Comment on Professor Gntndfest's "Disimplying Private Rights of Action Under the Federal Securities Laws: The Commission's Authority," 108 HARV. L. REV. 438 (1994) (arguing that evidence was insufficient to justify increased burdens on securities litigation). Compare Janet Cooper Alexander, Do the Merits Matter? A Study of Settlements in Securities Class Actions, 43 STAN. L. REV. 497 (1991) (reporting a study from which she concludes that the settlement value of litigation is not affected by its merits so much as by the nuisance value of the lawsuit once commenced).
29. The Private Securities Litigation Reform Act of 1995, § 102(c)(1). The PSLRA provides: [I]n any private action arising under this title that is based on an untrue statement of a material fact or omission of a material fact necessary to make the statement not misleading, a person . . . shall not be liable with respect to any forward-looking statement, whether written or oral, if and to the extent that - (A) the forward-looking statement is - (i) identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement . . . . Id. This provision enacted both a new §27A to the Securities Act of 1933 (codified at 15 U.S.C. §77z-2(c)), and a new §21E to the Securities Exchange Act of 1934 (codified at 15 U.S.C. §78u-5). The safe-harbor provision has been highly criticized for giving issuers a license to commit fraud. See, e.g., Veto Override Creates Safe Harbor for Fraud, SEATTLE TIMES, Dec. 21, 1995, at B6 (describing the law as providing a "dispensation from truthfulness if the lies are armored with boilerplate warnings and cautions"). Compare John C. Coffee, Safe Harbor for Forward-Looking Statements, N.Y.L.J., Nov. 30, 1995, at 5 (arguing that such assessments are "overstatement"); see also Phillips & Miller, supra note 15.
30. The Private Securities Litigation Reform Act of 1995, § 102(c)(1). The PSLRA provides: [I]n any private action arising under this title that is based on an untrue statement of a material fact or omission of a material fact necessary to make the statement not misleading, a person . . . shall not be liable with respect to any forward-looking statement, whether written or oral, if and to the extent that - (A) the forward-looking statement is - (i) identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement . . . . Id. This provision enacted both a new §27A to the Securities Act of 1933 (codified at 15 U.S.C. §77z-2(c)), and a new §21E to the Securities Exchange Act of 1934 (codified at 15 U.S.C. §78u-5). The safe-harbor provision has been highly criticized for giving issuers a license to commit fraud. See, e.g., Veto Override Creates Safe Harbor for Fraud, SEATTLE TIMES, Dec. 21, 1995, at B6 (describing the law as providing a "dispensation from truthfulness if the lies are armored with boilerplate warnings and cautions"). Compare John C. Coffee, Safe Harbor for Forward-Looking Statements, N.Y.L.J., Nov. 30, 1995, at 5 (arguing that such assessments are "overstatement"); see also Phillips & Miller, supra note 15.
31. See 15 U.S.C.A. § 78u-4(g)(2) (West 1997) (amending Securities Exchange Act of 1934, § 21D).
32. See 15 U.S.C.A. § 78u-4(e) (West 1997).
33. See 18 U.S.C.A. § 1964(c) (West Supp. 1998) (Racketeering Influenced and Corrupt Organizations Act).
34. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
35. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
36. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
37. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
38. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
39. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
40. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
41. Dubbed the "law of unintended consequences" by Joseph Grundfest, the PSLRA may have simply driven many cases out of federal court and into state courts, at least for the first year after its enactment. See Walker et al., supra note 15; Panelists Dispute Reform Law's Impact on Private Class Securities Fraud Litigation, 29 Sec. Reg. & L. Rep. (BNA) 1134 (1997); Shelene Clark, One Year's Experience With Reform Reveals Law May Have Unintended Results, 29 Sec. Reg. & L. Rep. (BNA) 386, 386-88 (1997) (citing study by Joseph A. Grundfest, which can be located on the Internet at 〈http://securities.stanford.edu〉). That trend showed some signs of reversing in 1997, with "an increase in the filings in federal court and a slow down in state court." Congress Targets "Loophole" in 1995 Act Barring Vexatious Suits, 29 Sec. Reg. & L. Rep. (BNA) 1211, 1212 (1997) (quoting Professor Grundfest). See also SEC Finds Number of Class Actions Rose in 1997 to Pre-Reform Level, 30 Sec. Reg. & L. Rep. (BNA) 275 (1998). Nevertheless, controversial bills recently introduced in the House would preempt state law, and give federal courts exclusive jurisdiction over private securities class actions involving nationally traded securities. See Securities Litigation Uniform Standards Act of 1997, H.R. 1689, 105th Cong. Another bill would require all securities fraud suits, not just class actions, involving nationally traded securities, to be commenced in federal court. Securities Litigation Improvement Act of 1997, H.R. 1653, 105th Cong. (1998). A bill similar to but with a slightly narrower scope than H.R. 1689 was introduced in the Senate on October 7, 1997. See Securities Litigation Uniform Standards Act of 1998, S. 1260, 105th Cong.; see also Gramm, Domenici, Dodd Introduce Bill to Federalize Securities Class Actions, 29 Sec. Reg. & L. Rep. (BNA) 1401 (1997). The Senate passed S. 1260 on May 13, 1998. On July 22, 1998, it was amended on the House floor by inserting the text of H. 1689, passed by the House, and sent to the Senate for concurrence. The Senate did not concur, and the bill was sent to Conference Committee on September 16, 1998.
42. John C. Coffee, Jr., The Future of the Private Securities Litigation Reform Act: Or, Why the Fat Lady Has Not Yet Sung, 51 BUS. LAW. 975, 995 (1996).
43. See 15 U.S.C.A. § 78u-4(b) (1), (2) (West 1997) (amending Securities Exchange Act of 1934, Ch. 404, 48 Stat. 881); see infra notes 43-44 and accompanying text; see also Coffee, supra note 22, at 977-85 (circuits had been split on pleading requirements normally required by Rule 9).
44. See 15 U.S.C.A. § 77z-1(c)(2) (amending Securities Exchange Act of 1934 § 27(c)); 15 U.S.C.A. § 78u-4(c)(2) (amending Securities Exchange Act of 1934 § 27(b)). Note that the revisions to Rule 11 in 1993 were intended to get rid of mandatory monetary sanctions.
45. See 15 U.S.C.A. § 77z-1(a)(3) (adding § 27(b) to the Securities Exchange Act of 1933); 15 U.S.C.A. 78u-4(b)(3)(B) (adding § 21 (D) (b)(3) to the Securities Exchange Act of 1934).
46. See 15 U.S.C.A. § 77z-1(a)(3)(B) (amending Securities Exchange Act of 1934 § 27(a)); 15 U.S.C.A. § 78u-1(a)(3) (amending Securities Exchange Act of 1934 § 21D). Rule 23 provides, inter alia, that the representative parties must "fairly and adequately protect the interests of the class."
47. See, e.g., Symposium on the Private Securities Litigation Reform Act of 1995, 51 BUS. LAW. 975 (1996).
48. The significance of the PSLRA for the rulemaking process has not gone unnoticed. See e.g. John Leubsdorf, Class Actions at the Cloverleaf, 39 ARIZ. L. REV. 453 (1997). At the 1996 AALS convention's Civil Procedure meeting, Professor Stephen Burbank warned that the Act should sound a "fire alarm" for those involved in the procedure-making process. Stephen B. Burbank, Procedure and Power, 46 J. LEGAL EDUC. 513, 516 (1996).
49. The significance of the PSLRA for the rulemaking process has not gone unnoticed. See e.g. John Leubsdorf, Class Actions at the Cloverleaf, 39 ARIZ. L. REV. 453 (1997). At the 1996 AALS convention's Civil Procedure meeting, Professor Stephen Burbank warned that the Act should sound a "fire alarm" for those involved in the procedure-making process. Stephen B. Burbank, Procedure and Power, 46 J. LEGAL EDUC. 513, 516 (1996).
50. See, e.g., Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989); Jack H. Friedenthal, The Rulemaking Power of the Supreme Court: A Contemporary Crisis, 27 STAN. L. REV. 673 (1975); Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK. L. REV. 761 (1993); Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795 (1991). Professor Burbank sees Congress' increasing role in the rulemaking process as a natural and predictable reaction by Congress to a procedural "power grab by the judiciary," which for years has failed to respect the allocation of power in the Rules Enabling Act. Burbank, supra note 28, at 513.
51. See, e.g., Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989); Jack H. Friedenthal, The Rulemaking Power of the Supreme Court: A Contemporary Crisis, 27 STAN. L. REV. 673 (1975); Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK. L. REV. 761 (1993); Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795 (1991). Professor Burbank sees Congress' increasing role in the rulemaking process as a natural and predictable reaction by Congress to a procedural "power grab by the judiciary," which for years has failed to respect the allocation of power in the Rules Enabling Act. Burbank, supra note 28, at 513.
52. See, e.g., Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989); Jack H. Friedenthal, The Rulemaking Power of the Supreme Court: A Contemporary Crisis, 27 STAN. L. REV. 673 (1975); Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK. L. REV. 761 (1993); Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795 (1991). Professor Burbank sees Congress' increasing role in the rulemaking process as a natural and predictable reaction by Congress to a procedural "power grab by the judiciary," which for years has failed to respect the allocation of power in the Rules Enabling Act. Burbank, supra note 28, at 513.
53. See, e.g., Paul D. Carrington, Making Rules to Dispose of Manifestly Unfounded Assertions: An Exorcism of the Bogy of Non-Trans-Substantive Rules of Civil Procedure, 137 U. PA. L. REV. 2067 (1989); Jack H. Friedenthal, The Rulemaking Power of the Supreme Court: A Contemporary Crisis, 27 STAN. L. REV. 673 (1975); Richard L. Marcus, Of Babies and Bathwater: The Prospects for Procedural Progress, 59 BROOK. L. REV. 761 (1993); Linda S. Mullenix, Hope Over Experience: Mandatory Informal Discovery and the Politics of Rulemaking, 69 N.C. L. REV. 795 (1991). Professor Burbank sees Congress' increasing role in the rulemaking process as a natural and predictable reaction by Congress to a procedural "power grab by the judiciary," which for years has failed to respect the allocation of power in the Rules Enabling Act. Burbank, supra note 28, at 513.
54. 28 U.S.C. §§ 2073-74 (1994). See also 28 U.S.C. § 331 (1994) (establishing the Judicial Conference).
55. See Roscoe Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599, 601-03 (1926).
56. See generally Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. PA. L. REV. 1015 (1982).
57. Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064.
58. Id.
59. See generally 4 CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1001 (2d ed. 1987).
60. See Paul D. Carrington, Learning From the Rule 26 Brouhaha: Our Courts Need Real Friends, 156 F.R.D. 295 (1994).
61. See, e.g., Arthur J. Goldberg, The Supreme Court, Congress, and Rules of Evidence, 5 SETON HALL L. REV. 667 (1974).
62. The statutes by which Congress had, to that point, affected Rules of Evidence and of Civil Procedure are listed in a 1985 House Committee Report accompanying a precursor bill to the 1988 statute amending the Rules Enabling Act. See H.R. REP. NO. 99-422, at 8-9 n.20 (1985 ) (technical and typographical errors in the report were corrected at 132 CONG. REC. E177-202 (daily ed. Feb. 3, 1986)). For a thorough analysis of the statutes and their implications for the rulemaking process, see Karen Nelson Moore, The Supreme Court's Role in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1053-61 (1993) (noting that "Congress' involvement in the process of amending Rules has been troubling," because of the disregard for the rulemaking process established by the Rules Enabling Act and, in at least one instance involving an amendment to Rule 35, was "a political response to the pressures of a discrete interest group rather than a carefully crafted response to procedural inadequacies of the prior Rule." Id. at 1057). See also Carrington, supra note 36, at 300 (noting in addition that "[i]n 1983, a proposal to amend Rule 4 was modified by Congress as a result of lobbying efforts of the National Association of Process Servers").
63. The statutes by which Congress had, to that point, affected Rules of Evidence and of Civil Procedure are listed in a 1985 House Committee Report accompanying a precursor bill to the 1988 statute amending the Rules Enabling Act. See H.R. REP. NO. 99-422, at 8-9 n.20 (1985 ) (technical and typographical errors in the report were corrected at 132 CONG. REC. E177-202 (daily ed. Feb. 3, 1986)). For a thorough analysis of the statutes and their implications for the rulemaking process, see Karen Nelson Moore, The Supreme Court's Role in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1053-61 (1993) (noting that "Congress' involvement in the process of amending Rules has been troubling," because of the disregard for the rulemaking process established by the Rules Enabling Act and, in at least one instance involving an amendment to Rule 35, was "a political response to the pressures of a discrete interest group rather than a carefully crafted response to procedural inadequacies of the prior Rule." Id. at 1057). See also Carrington, supra note 36, at 300 (noting in addition that "[i]n 1983, a proposal to amend Rule 4 was modified by Congress as a result of lobbying efforts of the National Association of Process Servers").
64. The statutes by which Congress had, to that point, affected Rules of Evidence and of Civil Procedure are listed in a 1985 House Committee Report accompanying a precursor bill to the 1988 statute amending the Rules Enabling Act. See H.R. REP. NO. 99-422, at 8-9 n.20 (1985 ) (technical and typographical errors in the report were corrected at 132 CONG. REC. E177-202 (daily ed. Feb. 3, 1986)). For a thorough analysis of the statutes and their implications for the rulemaking process, see Karen Nelson Moore, The Supreme Court's Role in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1053-61 (1993) (noting that "Congress' involvement in the process of amending Rules has been troubling," because of the disregard for the rulemaking process established by the Rules Enabling Act and, in at least one instance involving an amendment to Rule 35, was "a political response to the pressures of a discrete interest group rather than a carefully crafted response to procedural inadequacies of the prior Rule." Id. at 1057). See also Carrington, supra note 36, at 300 (noting in addition that "[i]n 1983, a proposal to amend Rule 4 was modified by Congress as a result of lobbying efforts of the National Association of Process Servers").
65. See, e.g., Carrington, supra note 36, at 300; Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Hole in Congress, 71 N.Y.U. L. REV. 1165 (1996).
66. 28 U.S.C. §§ 2073-74 (1988).
67. 28 U.S.C. §§ 471-82 (1994).
68. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992); Carl Tobias, Civil Justice Reform Roadmap, 142 F.R.D. 507 (1992); Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L.J. 1393 (1992); Edwin J. Wesely, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Rules of Federal Procedure; CJRA Plans; Rule 83 - What Trumps What?, 154 F.R.D. 563 (1994). For an argument that the CJRA did not authorize local rules inconsistent with the FRCP, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994).
69. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992); Carl Tobias, Civil Justice Reform Roadmap, 142 F.R.D. 507 (1992); Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L.J. 1393 (1992); Edwin J. Wesely, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Rules of Federal Procedure; CJRA Plans; Rule 83 - What Trumps What?, 154 F.R.D. 563 (1994). For an argument that the CJRA did not authorize local rules inconsistent with the FRCP, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994).
70. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992); Carl Tobias, Civil Justice Reform Roadmap, 142 F.R.D. 507 (1992); Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L.J. 1393 (1992); Edwin J. Wesely, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Rules of Federal Procedure; CJRA Plans; Rule 83 - What Trumps What?, 154 F.R.D. 563 (1994). For an argument that the CJRA did not authorize local rules inconsistent with the FRCP, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994).
71. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992); Carl Tobias, Civil Justice Reform Roadmap, 142 F.R.D. 507 (1992); Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L.J. 1393 (1992); Edwin J. Wesely, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Rules of Federal Procedure; CJRA Plans; Rule 83 - What Trumps What?, 154 F.R.D. 563 (1994). For an argument that the CJRA did not authorize local rules inconsistent with the FRCP, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994).
72. See generally Linda S. Mullenix, The Counter-Reformation in Procedural Justice, 77 MINN. L. REV. 375 (1992); Carl Tobias, Civil Justice Reform Roadmap, 142 F.R.D. 507 (1992); Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 ARIZ. ST. L.J. 1393 (1992); Edwin J. Wesely, The Civil Justice Reform Act; The Rules Enabling Act; The Amended Rules of Federal Procedure; CJRA Plans; Rule 83 - What Trumps What?, 154 F.R.D. 563 (1994). For an argument that the CJRA did not authorize local rules inconsistent with the FRCP, see Lauren K. Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994).
73. See generally Carrington, supra note 36; Mullenix, supra note 29.
74. See Carrington, supra note 36; Walker, supra note 11.
75. Order of April 22, 1993, Amendments to the Federal Rules of Civil Procedure, reprinted in 146 F.R.D. 402, 403 (1993) (letter from Chief Justice William H. Rehnquist to Speaker of the House Thomas S. Foley, Apr. 22, 1993).
76. Order of April 22, 1993, Amendments to the Federal Rules of Civil Procedure, 507 U.S. 1091, 1099-1101 (1993) (Scalia, J., with Thomas and Souter, JJ., dissenting) ("The proposed radical reforms to the discovery process are potentially disastrous and certainly premature - particularly the imposition on litigants of a continuing duty to disclose to opposing counsel, without awaiting any request, various information 'relevant to disputed facts alleged with particularity.'")
77. Professor Mullenix predicted this turn of events several years earlier: [T]he inevitable politicization of the Civil Rules Advisory Committee foreshadows the decline of that body's role in procedural rule-drafting. The partisan rule reformers will realize quickly that the Advisory Committee, by its nature, is an ineffectual forum in which to lobby for rule reform. Not only is the Advisory Committee painfully slow deliberative and dull, but its Article III judges have little incentive to bend to political will. Hence, the partisan rule reformers eventually will abandon the Advisory Committee and take their causes to other rulemaking bodies, namely the congressional committees with federal rulemaking oversight. Mullenix, supra note 29, at 801-02 (footnotes omitted). See also Paul Carrington, The New Order in Judicial Rulemaking, 75 JUDICATURE 161, 165-66 (1991) (predicting as the Reporter for the Advisory Committee that "[i]f Congress is responsive, as is its wont, to every faction in the United States that detects a possible stake in a proposed amendment to the rules, the rulemaking tradition is doomed to disintegrate"); Walker, supra note 11, at 460-63.
78. The Civil Rules Amendment Act of 1993, H.R. 2814, 103rd Cong., which would have deleted the mandatory disclosure provisions of Rule 26(a)(1), was passed by the House and sent to the Senate in November of 1993. However, that Rule was part of a package of discovery amendments, which also included caps on the number of interrogatories and depositions. See Fed. R. Civ. P. 30(a)2(A); 31(a)(2)(A); 33(a). These caps were intended to encourage the use of mandatory disclosure. and senators generally agreed that Rule 26(a)(1) should be deleted, they could not agree on what to do with the caps on formal discovery, or on whether Congress should simply delay the provisions to give itself more time to consider the issue. The bill was delayed and did not come to a vote before the Senate recessed. See Leslie M. Kelleher, The December 1993 Amendments to the Federal Rules of Civil Procedure - A Critical Analysis, 12 TOURO L. REV. 7, 9-10 (1995); Michael Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to the Federal Rules of Civil Procedure 26, 29 TORT & INS. L.J. 468 (1994); Carrington, supra note 36, at 308-10. After the 1993 amendments came into effect, enthusiasm for the fight against the mandatory disclosure provisions waned, but a bill was introduced to repeal the equally controversial amendments to Rule 11. See Attorney Accountability Act of 1995, H.R. 988, 104th Cong. The bill did not become law. For a description of this and related bills, see Edward D. Cavanagh, Rule 11 of the Federal Rules of Civil Procedure: The Case Against Turning Back the Clock, 162 F.R.D. 383 (1995); Carl Tobias, Common Sense and Other Legal Reforms, 48 VAND. L. REV. 699 (1995); Carl Tobias, Why Congress Should Reject Revision of Rule 11, 160 F.R.D. 275 (1995). As already noted, mandatory sanctions are imposed in some securities suits under the PSLRA. See 15 U.S.C.A. §§ 78u-4(c)(1), (2) (West Supp. 1996); see also Simon DeBartolo Group L.P. v. Richard E. Jacobs Group, Inc., 985 F. Supp. 427 (S.D.N.Y. 1997). A more recent bill, the Prisoners Frivolous Lawsuit Prevention Act of 1997, H.R. 1492, 105th Cong., is pending. It would require the imposition of sanctions on parties and attorneys who violate Rule 11(b) in prisoner suits, and would eliminate the Rule 11(c)(2) limits on sanctions in such suits. On another front, the court reporters' lobby has managed to have a bill introduced into the Senate which, if passed, would repeal the 1993 amendments to Rule 30 and restore the preference for traditional stenographic, as opposed to videotaped, depositions. See S. 1352, 105th Cong. (1997). On June 19, 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment amendments to the mandatory disclosure provisions proposed by the Advisory Committee. Rule 26(a)(1) would be amended to preclude local opting out of initial disclosure, but limit the disclosure of witnesses and documents to supporting information. The proposed amendments also would exempt certain types of proceedings from disclosure and permit a party who feels disclosure is inappropriate in the circumstances of the action to object to the court. See Proposed Amendments to Rule 26, available 〈http://www.uscourts.gov〉.
79. The Civil Rules Amendment Act of 1993, H.R. 2814, 103rd Cong., which would have deleted the mandatory disclosure provisions of Rule 26(a)(1), was passed by the House and sent to the Senate in November of 1993. However, that Rule was part of a package of discovery amendments, which also included caps on the number of interrogatories and depositions. See Fed. R. Civ. P. 30(a)2(A); 31(a)(2)(A); 33(a). These caps were intended to encourage the use of mandatory disclosure. and senators generally agreed that Rule 26(a)(1) should be deleted, they could not agree on what to do with the caps on formal discovery, or on whether Congress should simply delay the provisions to give itself more time to consider the issue. The bill was delayed and did not come to a vote before the Senate recessed. See Leslie M. Kelleher, The December 1993 Amendments to the Federal Rules of Civil Procedure - A Critical Analysis, 12 TOURO L. REV. 7, 9-10 (1995); Michael Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to the Federal Rules of Civil Procedure 26, 29 TORT & INS. L.J. 468 (1994); Carrington, supra note 36, at 308-10. After the 1993 amendments came into effect, enthusiasm for the fight against the mandatory disclosure provisions waned, but a bill was introduced to repeal the equally controversial amendments to Rule 11. See Attorney Accountability Act of 1995, H.R. 988, 104th Cong. The bill did not become law. For a description of this and related bills, see Edward D. Cavanagh, Rule 11 of the Federal Rules of Civil Procedure: The Case Against Turning Back the Clock, 162 F.R.D. 383 (1995); Carl Tobias, Common Sense and Other Legal Reforms, 48 VAND. L. REV. 699 (1995); Carl Tobias, Why Congress Should Reject Revision of Rule 11, 160 F.R.D. 275 (1995). As already noted, mandatory sanctions are imposed in some securities suits under the PSLRA. See 15 U.S.C.A. §§ 78u-4(c)(1), (2) (West Supp. 1996); see also Simon DeBartolo Group L.P. v. Richard E. Jacobs Group, Inc., 985 F. Supp. 427 (S.D.N.Y. 1997). A more recent bill, the Prisoners Frivolous Lawsuit Prevention Act of 1997, H.R. 1492, 105th Cong., is pending. It would require the imposition of sanctions on parties and attorneys who violate Rule 11(b) in prisoner suits, and would eliminate the Rule 11(c)(2) limits on sanctions in such suits. On another front, the court reporters' lobby has managed to have a bill introduced into the Senate which, if passed, would repeal the 1993 amendments to Rule 30 and restore the preference for traditional stenographic, as opposed to videotaped, depositions. See S. 1352, 105th Cong. (1997). On June 19, 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment amendments to the mandatory disclosure provisions proposed by
80. The Civil Rules Amendment Act of 1993, H.R. 2814, 103rd Cong., which would have deleted the mandatory disclosure provisions of Rule 26(a)(1), was passed by the House and sent to the Senate in November of 1993. However, that Rule was part of a package of discovery amendments, which also included caps on the number of interrogatories and depositions. See Fed. R. Civ. P. 30(a)2(A); 31(a)(2)(A); 33(a). These caps were intended to encourage the use of mandatory disclosure. and senators generally agreed that Rule 26(a)(1) should be deleted, they could not agree on what to do with the caps on formal discovery, or on whether Congress should simply delay the provisions to give itself more time to consider the issue. The bill was delayed and did not come to a vote before the Senate recessed. See Leslie M. Kelleher, The December 1993 Amendments to the Federal Rules of Civil Procedure - A Critical Analysis, 12 TOURO L. REV. 7, 9-10 (1995); Michael Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to the Federal Rules of Civil Procedure 26, 29 TORT & INS. L.J. 468 (1994); Carrington, supra note 36, at 308-10. After the 1993 amendments came into effect, enthusiasm for the fight against the mandatory disclosure provisions waned, but a bill was introduced to repeal the equally controversial amendments to Rule 11. See Attorney Accountability Act of 1995, H.R. 988, 104th Cong. The bill did not become law. For a description of this and related bills, see Edward D. Cavanagh, Rule 11 of the Federal Rules of Civil Procedure: The Case Against Turning Back the Clock, 162 F.R.D. 383 (1995); Carl Tobias, Common Sense and Other Legal Reforms, 48 VAND. L. REV. 699 (1995); Carl Tobias, Why Congress Should Reject Revision of Rule 11, 160 F.R.D. 275 (1995). As already noted, mandatory sanctions are imposed in some securities suits under the PSLRA. See 15 U.S.C.A. §§ 78u-4(c)(1), (2) (West Supp. 1996); see also Simon DeBartolo Group L.P. v. Richard E. Jacobs Group, Inc., 985 F. Supp. 427 (S.D.N.Y. 1997). A more recent bill, the Prisoners Frivolous Lawsuit Prevention Act of 1997, H.R. 1492, 105th Cong., is pending. It would require the imposition of sanctions on parties and attorneys who violate Rule 11(b) in prisoner suits, and would eliminate the Rule 11(c)(2) limits on sanctions in such suits. On another front, the court reporters' lobby has managed to have a bill introduced into the Senate which, if passed, would repeal the 1993 amendments to Rule 30 and restore the preference for traditional stenographic, as opposed to videotaped, depositions. See S. 1352, 105th Cong. (1997). On June 19, 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment amendments to the mandatory disclosure provisions proposed by the Advisory Committee. Rule 26(a)(1) would be amended to preclude local opting out of initial disclosure, but limit the disclosure of witnesses and documents to supporting information. The proposed amendments also would exempt certain types of proceedings from disclosure and permit a party who feels disclosure is inappropriate in the circumstances of the action to object to the court. See Proposed Amendments to Rule 26, available 〈http://www.uscourts.gov〉.
81. The Civil Rules Amendment Act of 1993, H.R. 2814, 103rd Cong., which would have deleted the mandatory disclosure provisions of Rule 26(a)(1), was passed by the House and sent to the Senate in November of 1993. However, that Rule was part of a package of discovery amendments, which also included caps on the number of interrogatories and depositions. See Fed. R. Civ. P. 30(a)2(A); 31(a)(2)(A); 33(a). These caps were intended to encourage the use of mandatory disclosure. and senators generally agreed that Rule 26(a)(1) should be deleted, they could not agree on what to do with the caps on formal discovery, or on whether Congress should simply delay the provisions to give itself more time to consider the issue. The bill was delayed and did not come to a vote before the Senate recessed. See Leslie M. Kelleher, The December 1993 Amendments to the Federal Rules of Civil Procedure - A Critical Analysis, 12 TOURO L. REV. 7, 9-10 (1995); Michael Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to the Federal Rules of Civil Procedure 26, 29 TORT & INS. L.J. 468 (1994); Carrington, supra note 36, at 308-10. After the 1993 amendments came into effect, enthusiasm for the fight against the mandatory disclosure provisions waned, but a bill was introduced to repeal the equally controversial amendments to Rule 11. See Attorney Accountability Act of 1995, H.R. 988, 104th Cong. The bill did not become law. For a description of this and related bills, see Edward D. Cavanagh, Rule 11 of the Federal Rules of Civil Procedure: The Case Against Turning Back the Clock, 162 F.R.D. 383 (1995); Carl Tobias, Common Sense and Other Legal Reforms, 48 VAND. L. REV. 699 (1995); Carl Tobias, Why Congress Should Reject Revision of Rule 11, 160 F.R.D. 275 (1995). As already noted, mandatory sanctions are imposed in some securities suits under the PSLRA. See 15 U.S.C.A. §§ 78u-4(c)(1), (2) (West Supp. 1996); see also Simon DeBartolo Group L.P. v. Richard E. Jacobs Group, Inc., 985 F. Supp. 427 (S.D.N.Y. 1997). A more recent bill, the Prisoners Frivolous Lawsuit Prevention Act of 1997, H.R. 1492, 105th Cong., is pending. It would require the imposition of sanctions on parties and attorneys who violate Rule 11(b) in prisoner suits, and would eliminate the Rule 11(c)(2) limits on sanctions in such suits. On another front, the court reporters' lobby has managed to have a bill introduced into the Senate which, if passed, would repeal the 1993 amendments to Rule 30 and restore the preference for traditional stenographic, as opposed to videotaped, depositions. See S. 1352, 105th Cong. (1997). On June 19, 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment amendments to the mandatory disclosure provisions proposed by the Advisory Committee. Rule 26(a)(1) would be amended to preclude local opting out of initial disclosure, but limit the disclosure of witnesses and documents to supporting information. The proposed amendments also would exempt certain types of proceedings from disclosure and permit a party who feels disclosure is inappropriate in the circumstances of the action to object to the court. See Proposed Amendments to Rule 26, available 〈http://www.uscourts.gov〉.
82. The Civil Rules Amendment Act of 1993, H.R. 2814, 103rd Cong., which would have deleted the mandatory disclosure provisions of Rule 26(a)(1), was passed by the House and sent to the Senate in November of 1993. However, that Rule was part of a package of discovery amendments, which also included caps on the number of interrogatories and depositions. See Fed. R. Civ. P. 30(a)2(A); 31(a)(2)(A); 33(a). These caps were intended to encourage the use of mandatory disclosure. and senators generally agreed that Rule 26(a)(1) should be deleted, they could not agree on what to do with the caps on formal discovery, or on whether Congress should simply delay the provisions to give itself more time to consider the issue. The bill was delayed and did not come to a vote before the Senate recessed. See Leslie M. Kelleher, The December 1993 Amendments to the Federal Rules of Civil Procedure - A Critical Analysis, 12 TOURO L. REV. 7, 9-10 (1995); Michael Wagner, Too Much, Too Costly, Too Soon? The Automatic Disclosure Amendments to the Federal Rules of Civil Procedure 26, 29 TORT & INS. L.J. 468 (1994); Carrington, supra note 36, at 308-10. After the 1993 amendments came into effect, enthusiasm for the fight against the mandatory disclosure provisions waned, but a bill was introduced to repeal the equally controversial amendments to Rule 11. See Attorney Accountability Act of 1995, H.R. 988, 104th Cong. The bill did not become law. For a description of this and related bills, see Edward D. Cavanagh, Rule 11 of the Federal Rules of Civil Procedure: The Case Against Turning Back the Clock, 162 F.R.D. 383 (1995); Carl Tobias, Common Sense and Other Legal Reforms, 48 VAND. L. REV. 699 (1995); Carl Tobias, Why Congress Should Reject Revision of Rule 11, 160 F.R.D. 275 (1995). As already noted, mandatory sanctions are imposed in some securities suits under the PSLRA. See 15 U.S.C.A. §§ 78u-4(c)(1), (2) (West Supp. 1996); see also Simon DeBartolo Group L.P. v. Richard E. Jacobs Group, Inc., 985 F. Supp. 427 (S.D.N.Y. 1997). A more recent bill, the Prisoners Frivolous Lawsuit Prevention Act of 1997, H.R. 1492, 105th Cong., is pending. It would require the imposition of sanctions on parties and attorneys who violate Rule 11(b) in prisoner suits, and would eliminate the Rule 11(c)(2) limits on sanctions in such suits. On another front, the court reporters' lobby has managed to have a bill introduced into the Senate which, if passed, would repeal the 1993 amendments to Rule 30 and restore the preference for traditional stenographic, as opposed to videotaped, depositions. See S. 1352, 105th Cong. (1997). On June 19, 1998, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment amendments to the mandatory disclosure provisions proposed by the Advisory Committee. Rule 26(a)(1) would be amended to preclude local opting out of initial disclosure, but limit the disclosure of witnesses and documents to supporting information. The proposed amendments also would exempt certain types of proceedings from disclosure and permit a party who feels disclosure is inappropriate in the circumstances of the action to object to the court. See Proposed Amendments to Rule 26, available 〈http://www.uscourts.gov〉.
83. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935(a), 108 Stat. 1796, 2135-37 (amending Federal Rules of Evidence by adding Rules 413-15).
84. Professor Carrington, at that time the Reporter to the Judicial Conference's Advisory Committee on Civil Rules, made the point as follows: Those few who observe judicial rulemaking are far more likely today to see social and economic consequences in what the Committee does than were earlier generations of observers. The substance-procedure line was never clear, and was never constant in its application to different contexts; but it also may be that its meaning has changed over the years, with more matters being perceived to be substantive than may once have been true. Reporter, Memorandum to the Civil Rules Committee re: Questions About the Rulemaking Process (October 18, 1989), at 13-14, quoted in Mullenix, supra note 29, at 835-36.
85. CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 291 (5th ed. 1994) (discussing Brown v. Western Ry. of Ala., 338 U.S. 294 (1949) (holding that state court hearing a federal FELA claim could not apply strict state rule that complaints must be strongly construed against pleader, as to do so would impose a burden on the right to recovery provided by federal law)).
86. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. REV. 631, 648. See generally 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2d §1202 (2d ed.1990) (discussing the differences between common law pleading, code pleading, and notice pleading).
87. Stephen C. Yeazell, The Misunderstood Consequences of Modern Civil Process, 1994 WIS. L. REV. 631, 648. See generally 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2d §1202 (2d ed.1990) (discussing the differences between common law pleading, code pleading, and notice pleading).
88. See Act of June 19, 1934, Pub. L. No. 415, 48 Stat. 1064.
89. Brown, 338 U.S. at 298.
90. See Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993) (rejecting a heightened pleading standard for "complaints alleging municipal liability under §1983," and noting that a heightened pleading standard is "[I]mpossible to square . . . with the liberal system of 'notice pleading' established by the plain language of Rule 8 and the ruling in Conley v. Gibson that Rule 8 meant what it said."). But see IA MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES 21 (1997) (arguing that Leatherman left open the issue of whether a heightened pleading requirement could be imposed for § 1983 claims in which a qualified immunity defense is available, "on the ground that a factually detailed complaint is necessary to vindicate the official's immunity from suit"). On pleading requirements generally, see Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433 (1986).
91. See Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993) (rejecting a heightened pleading standard for "complaints alleging municipal liability under §1983," and noting that a heightened pleading standard is "[I]mpossible to square . . . with the liberal system of 'notice pleading' established by the plain language of Rule 8 and the ruling in Conley v. Gibson that Rule 8 meant what it said."). But see IA MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS AND DEFENSES 21 (1997) (arguing that Leatherman left open the issue of whether a heightened pleading requirement could be imposed for § 1983 claims in which a qualified immunity defense is available, "on the ground that a factually detailed complaint is necessary to vindicate the official's immunity from suit"). On pleading requirements generally, see Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433 (1986).
92. Compare Denny v. Barber, 576 F.2d 465 (2d Cir. 1978) (dismissing complaint for failing to comply with particularity requirements of Rule 9(b)) with Denny v. Carey, 72 F.R.D. 574 (E.D. Pa. 1976) (finding that similar complaint, involving same plaintiff represented by the same counsel, and naming the same accounting firm as a defendant, was sufficiently particular to withstand motion to dismiss). See generally Coffee, supra note 22, at 978-79; John F. Olson et al., Pleading Reform, Plaintiff Qualification and Discovery Stays Under the Reform Act, 51 BUS. LAW. 1101, 1108-09 (1996).
93. See Coffee, supra note 22, at 979-80 (noting that the Statement of Managers, which is the legislative history of the Conference Report, states that Congress desired a stricter rule than the Second Circuit's, but pointing out that the legislative history does not indicate what the new, stricter standard was intended to be). Several cases interpreting the PSLRA have rejected the former Second Circuit standard in favor of a more strict pleading requirement. See, e.g., Friedberg v. Discreet Logic, Inc., 959 F. Supp. 42 (D. Mass. 1997); Norwood Venture Corp. v. Converse Inc., 959 F. Supp. 205 (S.D.N.Y. 1997). Other courts have continued to find sufficient a showing of "motive and opportunity" to defraud, or "circumstantial evidence of recklessness." See, e.g., In re Health Management, Inc., 970 F. Supp. 192 (E.D.N.Y. July 21, 1997); Shahzad v. Meyers, No. 95 Civ. 6196 (DAB), 1997 WL 47817 (S.D.N.Y. Feb. 6, 1997); Rehm v. Eagle Finance Corp., 954 F. Supp. 1246 (N.D. Ill. 1997). See generally Dennis J. Block & Jonathan M. Hoff, Scienter Requirements Under Securities Litigation Reform, N.Y.L.J., July 17, 1997, at 5 (analyzing cases). See also James Hamilton, Securities Litigation Reform Act at Eighteen Months, 1780 Fed. Sec. L. Rep. (CCH) ¶ 9,11 (Aug. 27, 1997).
94. See Coffee, supra note 22, at 979-80 (noting that the Statement of Managers, which is the legislative history of the Conference Report, states that Congress desired a stricter rule than the Second Circuit's, but pointing out that the legislative history does not indicate what the new, stricter standard was intended to be). Several cases interpreting the PSLRA have rejected the former Second Circuit standard in favor of a more strict pleading requirement. See, e.g., Friedberg v. Discreet Logic, Inc., 959 F. Supp. 42 (D. Mass. 1997); Norwood Venture Corp. v. Converse Inc., 959 F. Supp. 205 (S.D.N.Y. 1997). Other courts have continued to find sufficient a showing of "motive and opportunity" to defraud, or "circumstantial evidence of recklessness." See, e.g., In re Health Management, Inc., 970 F. Supp. 192 (E.D.N.Y. July 21, 1997); Shahzad v. Meyers, No. 95 Civ. 6196 (DAB), 1997 WL 47817 (S.D.N.Y. Feb. 6, 1997); Rehm v. Eagle Finance Corp., 954 F. Supp. 1246 (N.D. Ill. 1997). See generally Dennis J. Block & Jonathan M. Hoff, Scienter Requirements Under Securities Litigation Reform, N.Y.L.J., July 17, 1997, at 5 (analyzing cases). See also James Hamilton, Securities Litigation Reform Act at Eighteen Months, 1780 Fed. Sec. L. Rep. (CCH) ¶ 9,11 (Aug. 27, 1997).
95. In his veto message, the President indicated that while he found the pleading standard adopted in the Second Circuit acceptable, any stricter standard was not. See 141 Cong. Rec. H15, 214-15 (daily ed. Dec. 20, 1995). See generally Coffee, supra note 22, at 977-85.
96. For other instances in which Congressional enactments have provided procedural advantages to particular groups, see generally Carl Tobias, The Transformation of Trans-Substantivity, 49 WASH. & LEE L. REV. 1501, 1502-04 (1992) . On legislation concerning class actions, see Jack Greenburg, Civil Rights Class Actions: Procedural Means of Obtaining Substance, 39 ARIZ. L. REV. 575 (1997); see also Leubsdorf, supra note 28, at 454 ("We are witnessing the decline of a single, transsubstantive system of civil procedure where class actions are concerned. Legislators have, in effect, amended Rule 23, not across the board, but in specified substantive areas, and for substantive reasons.").
97. For other instances in which Congressional enactments have provided procedural advantages to particular groups, see generally Carl Tobias, The Transformation of Trans-Substantivity, 49 WASH. & LEE L. REV. 1501, 1502-04 (1992) . On legislation concerning class actions, see Jack Greenburg, Civil Rights Class Actions: Procedural Means of Obtaining Substance, 39 ARIZ. L. REV. 575 (1997); see also Leubsdorf, supra note 28, at 454 ("We are witnessing the decline of a single, transsubstantive system of civil procedure where class actions are concerned. Legislators have, in effect, amended Rule 23, not across the board, but in specified substantive areas, and for substantive reasons.").
98. United States v. Furey, 514 F.2d 1098, 1104 n.5 (2d Cir. 1975) (citing U.S. CODE CONG. SERV., 80TH CONG., 2D SESS., 5 LEGISLATIVE HISTORY OF TITLE 28 at 1895, 1896 (1948)).
99. See, e.g., Symposium, The 50th Anniversary of the Federal Rules of Civil Procedure 1938-1988, 137 U. PA. L. REV. 1873 (1989).
100. See Jack H. Friedenthal, A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure, 69 CAL. L. REV. 806, 814-15 (1981) (arguing that it is "far better to leave procedural reform in the hands of the Supreme Court and its advisory committees, whose members are chosen for their dedication to the improvement of the judicial process, than to rely on elected politicians who must satisfy many constituents on a variety of issues"). But see Jonathan R. Macey, Judicial Preferences, Public Choices, and the Rules of Procedure, 23 J. LEGAL STUD. 627 (1994) (arguing that, in making and applying procedural rules, judges are influenced by their own interests, including their appetites for power, prestige, and leisure time, and that those interests sometimes may be contrary to the public interest). See also Janet Cooper Alexander, Judges' Self-Interest and Procedural Rules: Comment on Macey, 23 J. LEGAL STUD. 647 (1994).
101. See Jack H. Friedenthal, A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure, 69 CAL. L. REV. 806, 814-15 (1981) (arguing that it is "far better to leave procedural reform in the hands of the Supreme Court and its advisory committees, whose members are chosen for their dedication to the improvement of the judicial process, than to rely on elected politicians who must satisfy many constituents on a variety of issues"). But see Jonathan R. Macey, Judicial Preferences, Public Choices, and the Rules of Procedure, 23 J. LEGAL STUD. 627 (1994) (arguing that, in making and applying procedural rules, judges are influenced by their own interests, including their appetites for power, prestige, and leisure time, and that those interests sometimes may be contrary to the public interest). See also Janet Cooper Alexander, Judges' Self-Interest and Procedural Rules: Comment on Macey, 23 J. LEGAL STUD. 647 (1994).
102. See Jack H. Friedenthal, A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure, 69 CAL. L. REV. 806, 814-15 (1981) (arguing that it is "far better to leave procedural reform in the hands of the Supreme Court and its advisory committees, whose members are chosen for their dedication to the improvement of the judicial process, than to rely on elected politicians who must satisfy many constituents on a variety of issues"). But see Jonathan R. Macey, Judicial Preferences, Public Choices, and the Rules of Procedure, 23 J. LEGAL STUD. 627 (1994) (arguing that, in making and applying procedural rules, judges are influenced by their own interests, including their appetites for power, prestige, and leisure time, and that those interests sometimes may be contrary to the public interest). See also Janet Cooper Alexander, Judges' Self-Interest and Procedural Rules: Comment on Macey, 23 J. LEGAL STUD. 647 (1994).
103. See Carrington, supra note 47, at 165-66 (predicting that "if Congress is responsive, as is its wont, to every faction in the United States that detects a possible stake in a proposed amendment to the rules, the rulemaking tradition is doomed to disintegrate"); Mullenix, supra note 29, at 802 (predicting that because of Congressional meddling, the Advisory Committee may "go the way of the French Aristocracy").
104. See, e.g., Stephen B. Burbank, Ignorance and Procedural Law Reform: A Call for a Moratorium, 59 BROOK. L. REV. 841 (1993) (urging that rulemakers obtain empirical evidence on the operation of present and proposed rules before amendments are promulgated); Carrington, supra note 47, at 166 (suggesting that a group be formed to lobby Congress to approve the amendments proposed by the Advisory Committee); Geyh, supra note 39 (proposing the creation of a commission designed to facilitate exchange of information among the branches of government); Walker, supra note 11 (arguing for a decrease in the discretion of the Advisory Committee via a Supreme Court order establishing general requirements for review and analysis of the systemic impact of amendments).
105. See U.S. CONST, art. III, § 1 ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"); U.S. CONST. art. I, § 8, cl. 9 ("The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court"); U.S. CONST. art. I, § 8, cl. 18 ("The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States"). Interpreting these provisions, the Supreme Court has said that: [T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either. Hanna v. Plumer, 380 U.S. 460, 472 (1965). See also Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22 (1988); Livingston v. Story, 34 U.S. (9 Pet.) 632, 656 (1835); Wayman v. Southard, 23 U.S. (10 Wheat) 1 (1825); Bank of United States v. Halstead, 23 U.S. (10 Wheat) 51 (1825).
106. See, e.g., Pound, supra note 31. See generally Burbank, supra note 32, at 1116 (gathering articles, and commenting that those arguing in favor of the inherent power of the court to regulate procedure by court rules often "ignor[e] distinctions between local and supervisory rules of court and between rules of court promulgated in a legislative vacuum and rules of court contravening statutes").
107. See John H. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276 (1928). For a more recent example of a similar argument, see Linda Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283 (1993); Linda Mullenix, Judicial Power and the Rules Enabling Act, 46 MERCER L. REV. 733 (1995) (arguing that separation of powers concerns and the requirement of an independent judiciary mandate that procedural rules be promulgated by the courts, rather than Congress).
108. See John H. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276 (1928). For a more recent example of a similar argument, see Linda Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283 (1993); Linda Mullenix, Judicial Power and the Rules Enabling Act, 46 MERCER L. REV. 733 (1995) (arguing that separation of powers concerns and the requirement of an independent judiciary mandate that procedural rules be promulgated by the courts, rather than Congress).
109. See John H. Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 ILL. L. REV. 276 (1928). For a more recent example of a similar argument, see Linda Mullenix, Unconstitutional Rulemaking: The Civil Justice Reform Act and Separation of Powers, 77 MINN. L. REV. 1283 (1993); Linda Mullenix, Judicial Power and the Rules Enabling Act, 46 MERCER L. REV. 733 (1995) (arguing that separation of powers concerns and the requirement of an independent judiciary mandate that procedural rules be promulgated by the courts, rather than Congress).
110. See JACK. B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 177 n.231 (1977); 4 WRIGHT & MILLER, supra note 35, § 1001 (collecting cites); see also William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS., Spring 1976, at 102, 107 (contending that the "[necessary and proper] clause assigns to Congress alone the responsibility to say by law what additional authority, if any, the executive and the courts are to have beyond that core of powers that are indispensable, rather than merely appropriate, or helpful, to the performance of their express duties under articles II and III of the Constitution").
111. See JACK. B. WEINSTEIN, REFORM OF COURT RULE-MAKING PROCEDURE 177 n.231 (1977); 4 WRIGHT & MILLER, supra note 35, § 1001 (collecting cites); see also William W. Van Alstyne, The Role of Congress in Determining Incidental Powers of the President and of the Federal Courts: A Comment on the Horizontal Effect of the Sweeping Clause, 40 LAW & CONTEMP. PROBS., Spring 1976, at 102, 107 (contending that the "[necessary and proper] clause assigns to Congress alone the responsibility to say by law what additional authority, if any, the executive and the courts are to have beyond that core of powers that are indispensable, rather than merely appropriate, or helpful, to the performance of their express duties under articles II and III of the Constitution").
112. WEINSTEIN, supra note 68, at 177 n.231 (citing P.G. FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 62-65 (1973) and Edson R. Sunderland, The Grant of Rule-Making Power to the Supreme Court of the United States, 32 MICH. L. REV. 1116, 1120-21 (1934)).
113. WEINSTEIN, supra note 68, at 177 n.231 (citing P.G. FISH, THE POLITICS OF FEDERAL JUDICIAL ADMINISTRATION 62-65 (1973) and Edson R. Sunderland, The Grant of Rule-Making Power to the Supreme Court of the United States, 32 MICH. L. REV. 1116, 1120-21 (1934)).
114. See Ralph U. Whitten, Separation of Powers Restriction on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 ME. L. REV. 41, 56-57 (1988).
115. See, e.g., Hanna v. Plumer, 380 U.S. 460, 472-73 (1965) (noting there are "matters which relate to the administration of legal proceedings, an area in which federal courts have traditionally exerted strong inherent power, completely aside from the powers Congress expressly conferred in the Rules [enactment process]") (quoting Lumbermen's Mut. Cas. Co. v. Wright, 322 F.2d 759, 764 (5th Cir. 1963)); Chambers v. Nasco, 501 U.S. 32 (1991) (finding trial court has inherent power to issue sanctions on a party for litigating in bad faith); Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980) (recognizing that "in narrowly defined circumstances federal courts have inherent power to assess attorney's fees against counsel"); Landis v. North Am. Co., 299 U.S. 248 (1936) (holding court has inherent power to control docket, including power to stay proceedings in one suit pending determination of another suit); Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530-31 (1824) (finding that the trial court has inherent power to regulate the conduct of lawyers).
116. Professors Wright, Miller, and Cooper cite remittitur practice as an example of what they refer to as "'federal common law of procedure' - that is, judge-made rules of practice and procedure". 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D § 4505 n.61 (2d ed. 1996) (citing cases).
117. Substantive federal common law is binding on state courts under the Supremacy Clause of the Constitution. See id. § 4514 (citing inter alia, Free v. Bland, 369 U.S. 663 (1962)). A federal procedural rule, by contrast, normally will not be applied by a state court, even in a matter as to which federal law controls the substantive outcome. In some such matters, however, the federal procedural rule will be considered part of the substantive federal law, and thus binding on state courts. See, e.g., Felder v. Casey, 487 U.S. 131 (1988); Dice v. Akron, Canton & Youngston R.R. Co., 342 U.S. 359 (1952); Brown v. Western Ry. of Ala., 338 U.S. 294 (1949).
118. See infra notes 103-05 and accompanying text.
119. See Byrd v. Blue Ridge Coop., 356 U.S. 525 (1958).
120. See Burbank, supra note 32, at 1115-16.
121. See, e.g., City of Milwaukee v. Illinois, 451 U.S. 304 (1981) (holding that the 1972 amendments to federal statutes governing water pollution narrowed the scope of federal common law as defined in the earlier case of Illinois v. City of Milwaukee, 406 U.S. 91 (1972), and that federal common law was now displaced, and could not be used to impose more stringent standards than those set out in the amended statute and relevant regulations); see also 19 WRIGHT ET AL., supra note 72, § 4514. See generally Henry Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1 (1975).
122. See, e.g., Hanna v. Plumer, 380 U.S. 460 (1965); Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). As one prominent jurist has observed, "[t]here has never been a fully compartmentalized separation of powers." WEINSTEIN, supra note 68, at 53.
123. See, e.g., Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2248 (1997). [O]f overriding importance, courts must be mindful that the rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. . . . The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered . . . . Id. (emphasis added). Cf. Chambers v. Nasco, 501 U.S. 32, 47 (1991) (finding that "[i]t is true that the exercise of the inherent power of lower federal courts can be limited by statute and rule," but no statute or rule displaced the courts' inherent powers to sanction) (emphasis added).
124. See Chambers, 501 U.S. 32 (1991). In Chambers, the Court declined to clarify the extent to which the judiciary's inherent powers are subject to congressional control. In that case, the Court declined to adopt a three-tier categorization of inherent powers suggested by the Third Circuit in Eash v. Riggins Trucking, Inc., 757 F.2d 557 (3d Cir. 1985), the first tier of which were "irreducible powers derived from Article III," which were beyond the control of Congress. Id. at 562-63. The Chambers Court stated "this Court has never so classified the inherent powers, and we have no need to do so now . . .", as it found in that case no Congressional intent to limit the Court's inherent power to sanction. Chambers, 501 U.S. at 47-48 n.12.
125. See Young v. United States ex rel. Vuitton, 481 U.S. 787, 799 (1987) (citing Michaelson v. United States, 266 U.S. 42, 65-66 (1924)) (recognizing that the inherent contempt power of federal courts is subject to regulation by Congress, provided that such regulation does not completely abrogate that power, nor render it practically inoperative); see also United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812) (noting that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution . . . . To fine for contempt-imprison for contumacy - inforce [sic] the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . ."). See generally Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts - A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1022 (1924) (discussing the extent to which Congress may control the contempt powers of the Court, and noting that "[a]s an incident to their being, courts must have the authority 'necessary in a strict sense' to enable them to go on with their work"). Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) ("[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion"); see also Brainer v. United States, 691 F.2d 691, 697 (4th Cir. 1982) ("we assume without deciding that federal courts possess some measure of administrative independence such that congressional intervention would, at some extreme point, 'pass[ ] the limit which separates the legislative from the judicial power'") (citing U.S. v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871)). Consider also the views of Professors Levin and Amsterdam: "There are spheres of activity so fundamental and so necessary to a court, so inherent in its very nature as a court, that to divest it of its absolute command within these spheres is to make meaningless the very phrase judicial power." A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1, 30 (1958); and of Professor Redish: "a specific procedural rule [enacted by Congress] could so interfere with the courts' performance of the . . . adjudicatory process of finding facts . . . as to invade the courts' judicial power' under Article III." Martin H. Redish, Federal Judicial Independence: Constitutional and Political Perspectives, 46 MERCER L. REV. 697, 725 (1995).
126. See Young v. United States ex rel. Vuitton, 481 U.S. 787, 799 (1987) (citing Michaelson v. United States, 266 U.S. 42, 65-66 (1924)) (recognizing that the inherent contempt power of federal courts is subject to regulation by Congress, provided that such regulation does not completely abrogate that power, nor render it practically inoperative); see also United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812) (noting that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution . . . . To fine for contempt-imprison for contumacy - inforce [sic] the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . ."). See generally Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts - A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1022 (1924) (discussing the extent to which Congress may control the contempt powers of the Court, and noting that "[a]s an incident to their being, courts must have the authority 'necessary in a strict sense' to enable them to go on with their work"). Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) ("[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion"); see also Brainer v. United States, 691 F.2d 691, 697 (4th Cir. 1982) ("we assume without deciding that federal courts possess some measure of administrative independence such that congressional intervention would, at some extreme point, 'pass[ ] the limit which separates the legislative from the judicial power'") (citing U.S. v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871)). Consider also the views of Professors Levin and Amsterdam: "There are spheres of activity so fundamental and so necessary to a court, so inherent in its very nature as a court, that to divest it of its absolute command within these spheres is to make meaningless the very phrase judicial power." A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1, 30 (1958); and of Professor Redish: "a specific procedural rule [enacted by Congress] could so interfere with the courts' performance of the . . . adjudicatory process of finding facts . . . as to invade the courts' judicial power' under Article III." Martin H. Redish, Federal Judicial Independence: Constitutional and Political Perspectives, 46 MERCER L. REV. 697, 725 (1995).
127. See Young v. United States ex rel. Vuitton, 481 U.S. 787, 799 (1987) (citing Michaelson v. United States, 266 U.S. 42, 65-66 (1924)) (recognizing that the inherent contempt power of federal courts is subject to regulation by Congress, provided that such regulation does not completely abrogate that power, nor render it practically inoperative); see also United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 33 (1812) (noting that "[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution . . . . To fine for contempt-imprison for contumacy - inforce [sic] the observance of order, &c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute . . ."). See generally Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in "Inferior" Federal Courts - A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1022 (1924) (discussing the extent to which Congress may control the contempt powers of the Court, and noting that "[a]s an incident to their being, courts must have the authority 'necessary in a strict sense' to enable them to go on with their work"). Cf. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) ("[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion"); see also Brainer v. United States, 691 F.2d 691, 697 (4th Cir. 1982) ("we assume without deciding that federal courts possess some measure of administrative independence such that congressional intervention would, at some extreme point, 'pass[ ] the limit which separates the legislative from the judicial power'") (citing U.S. v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871)). Consider also the views of Professors Levin and Amsterdam: "There are spheres of activity so fundamental and so necessary to a court, so inherent in its very nature as a court, that to divest it of its absolute command within these spheres is to make meaningless the very phrase judicial power." A. Leo Levin & Anthony G. Amsterdam, Legislative Control Over Judicial Rule-Making: A Problem in Constitutional Revision, 107 U. PA. L. REV. 1, 30 (1958); and of Professor Redish: "a specific procedural rule [enacted by Congress] could so interfere with the courts' performance of the . . . adjudicatory process of finding facts . . . as to invade the courts' judicial power' under Article III." Martin H. Redish, Federal Judicial Independence: Constitutional and Political Perspectives, 46 MERCER L. REV. 697, 725 (1995).
128. Cf. Burbank, supra note 4, at 1004 n.30. Burbank observed that: [C]ommentators are too quick to find assertions of inherent power [to make rules] in judicial opinions. Take, for instance, Hecker v. Fowler, 69 U.S. (2 Wall.) 123 (1865) . . . where the Court stated: "Circuit courts, as well as all other Federal courts, have authority to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States." Id. at 128 (emphasis added). The case is cited for the proposition that the federal courts possess inherent power to make rules. . . . But the Court was not asserting any inherent power at all. Rather, it was, in the italicized language, directly quoting the Act of Sept. 24, 1789, ch. 20, § 17, 1 Stat. 73, 83. Id. (citations to articles omitted).
129. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary, and a chief opponent of uniform federal rules, see Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Martin H. Redish, Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta, 39 DEPAUL L. REV. 299, 314-19 (1990) (applying a formalism model of separation of powers to conclude that there are serious doubts about the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, even when Congress has purported to delegate what is, in Redish's view, essentially a legislative power); Redish, supra note 81, at 725; cf. Whitten, supra note 70, at 57 & n.73 (citing WEINSTEIN, supra note 68, at 4-5): Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. WEINSTEIN, supra note 68, passim (1977).
130. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary, and a chief opponent of uniform federal rules, see Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Martin H. Redish, Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta, 39 DEPAUL L. REV. 299, 314-19 (1990) (applying a formalism model of separation of powers to conclude that there are serious doubts about the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, even when Congress has purported to delegate what is, in Redish's view, essentially a legislative power); Redish, supra note 81, at 725; cf. Whitten, supra note 70, at 57 & n.73 (citing WEINSTEIN, supra note 68, at 4-5): Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. WEINSTEIN, supra note 68, passim (1977).
131. For an argument that rulemaking is an essentially legislative function that cannot be delegated to the Court, posited by a long-time chair of the Senate Committee on the Judiciary, and a chief opponent of uniform federal rules, see Thomas J. Walsh, Rule-Making Power on the Law Side of Federal Practice, 6 OR. L. REV. 1 (1926), reprinted in 13 A.B.A. J. 87 (1927). See also Martin H. Redish, Separation of Powers, Judicial Authority, and the Scope of Article III: The Troubling Cases of Morrison and Mistretta, 39 DEPAUL L. REV. 299, 314-19 (1990) (applying a formalism model of separation of powers to conclude that there are serious doubts about the constitutionality of an Article III court promulgating generalized rules of procedure outside of a case or controversy, even when Congress has purported to delegate what is, in Redish's view, essentially a legislative power); Redish, supra note 81, at 725; cf. Whitten, supra note 70, at 57 & n.73 (citing WEINSTEIN, supra note 68, at 4-5): Rule-making by federal courts represents a reversal of usual adjudicative patterns. In most instances a court acts in controversies based upon particular facts on a case-by-case basis, leaving subsequent decisions to synthesize general substantive and procedural rules. At the level of national rule-making, the Supreme Court lays down general standards applicable to all future cases without the aid of individual fact situations and argument. The Court does not have before it interested parties with a motive for presenting the case fully, as it does in litigation meeting constitutional justiciability requirements. In rule-making the Court makes legislative pronouncements . . . a departure from the usual instance where congressional legislation is measured and interpreted by the courts in the light of constitutional and other requirements. Id. Unlike Professor Redish, however, Professors Whitten and Weinstein conclude that separation of powers does not prohibit delegation of rulemaking authority to the Court. WEINSTEIN, supra note 68, passim (1977).
132. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825); see also Van Alstyne, supra note 68, at 124-25.
133. See, e.g., Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. CHI. L. REV. 1, 24 (1985). Since the separation-of-powers principle is concerned only with judicial intrusion into lawmaking function of Congress, the promulgation of "housekeeping" rules that would have no impact on congressional policies is consistent with the constitutional division of powers. . . . [F]ederal courts should be regarded as having inherent authority [subject to congressional override] to adopt their own provisions regarding the conduct of litigation and internal operations without violating any principle of separation of powers. Id.; see also Goldberg, supra note 37, at 669-71 (reviewing historical practice in English courts, and the adoption of those practices in the United States, and concluding that "[historically, courts have been generally thought to possess certain rule making powers").
134. See Paul D. Carrington, A New Confederacy? Disunionism in the Federal Courts, 45 DUKE L. J. 929, 974 (1996) (arguing that federal procedure fashioned entirely by case law "in the short term would raise an issue whether due process of law requires that there be some rules of the game announced in advance of the commencement of play").
135. See 4 WRIGHT & MILLER., supra note 35, at 5 (stating that the debate as to the nature and scope of the courts' inherent power "really is of no practical importance with regard to federal practice" because it is assumed that Congress has the constitutional authority to regulate practice and procedure, and has delegated that authority to the Supreme Court).
136. See Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945) ("'[S]ubstance' and 'procedure' are the same key-word to very different problems. Neither 'substance' nor 'procedure' represents the same invariants. Each implies different variables depending upon the particular problem for which it is used."). See generally Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 YALE L.J. 333 (1933).
137. See infra Parts III & IV.
138. Ely, supra note 1, at 724 (citation omitted) (using this phrase to describe "procedural rules" within the meaning of the Rules Enabling Act.). See also D. Michael Risinger, "Substance" and "Procedure" Revisited With Some Afterthoughts on the Constitutional Problems of "Irrebuttable Presumptions," 30 U.C.L.A. L. Rev. 189, 204-09 (1982).
139. See, e.g., FED. R. CIV. P. 5.
140. See Ely, supra note 1, at 724 (citation omitted) (describing "substantive rights" within the meaning of the Rules Enabling Act); see also Burbank, supra note 5, at 1019-20. See generally Risinger, supra note 90.
141. See Burbank, supra note 5, at 1027-28; see also Risinger, supra note 90.
142. Hanna v. Plumer, 380 U.S. 460, 472 (1965).
143. See generally Tyler T. Ochoa & Andrew J. Wistrich, The Puzzling Purposes of Statutes of Limitations, 28 PAC. L. J. 453 (1997) (analyzing policies favoring and disfavoring limitations of actions). See also Risinger, supra note 90, at 209-10.
144. See, e.g., Michaelson v. United States, 266 U.S. 42, 65-66 (1924).
145. Hanna, 360 U.S. at 472.
146. See Whitten, supra note 70, at 55-56 ("The text of article III . . . and the compromise that produced the language indicates that Congress should decide not only whether to create inferior federal courts, but also whether, and to what extent, these courts would supplant the jurisdiction of state courts over national matters . . . . [T]here are other matters of court organization and structure that seem so fundamental that Congress must determine them itself. Such matters include the number of lower federal courts, their basic form, and the number of judges to sit on the courts and the qualifications of the judges, and the location of such courts.") (citations omitted). See also Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 22 (1981) ("The concept of subject-matter jurisdiction in our legal system refers to . . . the root power to adjudicate a specified set of controversies. Ultimately, jurisdiction is an essential part of what makes a court a court . . . . From the elemental, legitimating quality of jurisdiction it follows that, whatever other powers a court may have to change legal norms, it cannot generate its own jurisdiction."). The Court does exert some control over subject matter jurisdiction, when it refuses to exercise jurisdiction conferred on it by Congress, as with the abstention doctrines. See David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (arguing for the legitimacy of the abstention doctrine). The constitutionality of this "jurisdictional common law" is questioned by some commentators. See, e.g., Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984) (arguing that the doctrine of abstention is unauthorized). See generally Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (reviewing debate, and proposing a "middle ground"). Professor Whitten, in the article cited above, argues that separation of powers concerns also remove from the courts' powers matters as to which Congress has occupied the field with regulation. See also Linda J. Rusch, Separation of Powers Analysis as a Method for Determining the Validity of Federal District Courts' Exercise of Local Rulemaking Power: Application to Local Rules Mandating Alternative Dispute Resolution, 23 CONN. L. REV. 483, 503-04 (1991) (proposing a separation of powers analysis similar to Professor Whitten's to determine when courts may make local rules and when Congress must do so). Professor Whitten's analysis is not inconsistent with the thesis of this article, in that he agrees that in the absence of legislation, those matters would be within the inherent authority of the courts. It is contended in this Article that it is preferable to characterize the event as a "displacement" or "override" of the procedural common law. It is the contention of this Article also that the Rules Enabling Act does not purport to delegate to the Court authority to promulgate rules in areas where Congress has legislated extensively.
147. See Whitten, supra note 70, at 55-56 ("The text of article III . . . and the compromise that produced the language indicates that Congress should decide not only whether to create inferior federal courts, but also whether, and to what extent, these courts would supplant the jurisdiction of state courts over national matters . . . . [T]here are other matters of court organization and structure that seem so fundamental that Congress must determine them itself. Such matters include the number of lower federal courts, their basic form, and the number of judges to sit on the courts and the qualifications of the judges, and the location of such courts.") (citations omitted). See also Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 22 (1981) ("The concept of subject-matter jurisdiction in our legal system refers to . . . the
148. See Whitten, supra note 70, at 55-56 ("The text of article III . . . and the compromise that produced the language indicates that Congress should decide not only whether to create inferior federal courts, but also whether, and to what extent, these courts would supplant the jurisdiction of state courts over national matters . . . . [T]here are other matters of court organization and structure that seem so fundamental that Congress must determine them itself. Such matters include the number of lower federal courts, their basic form, and the number of judges to sit on the courts and the qualifications of the judges, and the location of such courts.") (citations omitted). See also Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 22 (1981) ("The concept of subject-matter jurisdiction in our legal system refers to . . . the root power to adjudicate a specified set of controversies. Ultimately, jurisdiction is an essential part of what makes a court a court . . . . From the elemental, legitimating quality of jurisdiction it follows that, whatever other powers a court may have to change legal norms, it cannot generate its own jurisdiction."). The Court does exert some control over subject matter jurisdiction, when it refuses to exercise jurisdiction conferred on it by Congress, as with the abstention doctrines. See David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (arguing for the legitimacy of the abstention doctrine). The constitutionality of this "jurisdictional common law" is questioned by some commentators. See, e.g., Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984) (arguing that the doctrine of abstention is unauthorized). See generally Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (reviewing debate, and proposing a "middle ground"). Professor Whitten, in the article cited above, argues that separation of powers concerns also remove from the courts' powers matters as to which Congress has occupied the field with regulation. See also Linda J. Rusch, Separation of Powers Analysis as a Method for Determining the Validity of Federal District Courts' Exercise of Local Rulemaking Power: Application to Local Rules Mandating Alternative Dispute Resolution, 23 CONN. L. REV. 483, 503-04 (1991) (proposing a separation of powers analysis similar to Professor Whitten's to determine when courts may make local rules and when Congress must do so). Professor Whitten's analysis is not inconsistent with the thesis of this article, in that he agrees that in the absence of legislation, those matters would be within the inherent authority of the courts. It is contended in this Article that it is preferable to characterize the event as a "displacement" or "override" of the procedural common law. It is the contention of this Article also that the Rules Enabling Act does not purport to delegate to the Court authority to promulgate rules in areas where Congress has legislated extensively.
149. See Whitten, supra note 70, at 55-56 ("The text of article III . . . and the compromise that produced the language indicates that Congress should decide not only whether to create inferior federal courts, but also whether, and to what extent, these courts would supplant the jurisdiction of state courts over national matters . . . . [T]here are other matters of court organization and structure that seem so fundamental that Congress must determine them itself. Such matters include the number of lower federal courts, their basic form, and the number of judges to sit on the courts and the qualifications of the judges, and the location of such courts.") (citations omitted). See also Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 22 (1981) ("The concept of subject-matter jurisdiction in our legal system refers to . . . the root power to adjudicate a specified set of controversies. Ultimately, jurisdiction is an essential part of what makes a court a court . . . . From the elemental, legitimating quality of jurisdiction it follows that, whatever other powers a court may have to change legal norms, it cannot generate its own jurisdiction."). The Court does exert some control over subject matter jurisdiction, when it refuses to exercise jurisdiction conferred on it by Congress, as with the abstention doctrines. See David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (arguing for the legitimacy of the abstention doctrine). The constitutionality of this "jurisdictional common law" is questioned by some commentators. See, e.g., Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984) (arguing that the doctrine of abstention is unauthorized). See generally Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (reviewing debate, and proposing a "middle ground"). Professor Whitten, in the article cited above, argues that separation of powers concerns also remove from the courts' powers matters as to which Congress has occupied the field with regulation. See also Linda J. Rusch, Separation of Powers Analysis as a Method for Determining the Validity of Federal District Courts' Exercise of Local Rulemaking Power: Application to Local Rules Mandating Alternative Dispute Resolution, 23 CONN. L. REV. 483, 503-04 (1991) (proposing a separation of powers analysis similar to Professor Whitten's to determine when courts may make local rules and when Congress must do so). Professor Whitten's analysis is not inconsistent with the thesis of this article, in that he agrees that in the absence of legislation, those matters would be within the inherent authority of the courts. It is contended in this Article that it is preferable to characterize the event as a "displacement" or "override" of the procedural common law. It is the contention of this Article also that the Rules Enabling Act does not purport to delegate to the Court authority to promulgate rules in areas where Congress has legislated extensively.
150. See Whitten, supra note 70, at 55-56 ("The text of article III . . . and the compromise that produced the language indicates that Congress should decide not only whether to create inferior federal courts, but also whether, and to what extent, these courts would supplant the jurisdiction of state courts over national matters . . . . [T]here are other matters of court organization and structure that seem so fundamental that Congress must determine them itself. Such matters include the number of lower federal courts, their basic form, and the number of judges to sit on the courts and the qualifications of the judges, and the location of such courts.") (citations omitted). See also Lawrence Gene Sager, Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 22 (1981) ("The concept of subject-matter jurisdiction in our legal system refers to . . . the root power to adjudicate a specified set of controversies. Ultimately, jurisdiction is an essential part of what makes a court a court . . . . From the elemental, legitimating quality of jurisdiction it follows that, whatever other powers a court may have to change legal norms, it cannot generate its own jurisdiction."). The Court does exert some control over subject matter jurisdiction, when it refuses to exercise jurisdiction conferred on it by Congress, as with the abstention doctrines. See David Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543 (1985) (arguing for the legitimacy of the abstention doctrine). The constitutionality of this "jurisdictional common law" is questioned by some commentators. See, e.g., Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L.J. 71 (1984) (arguing that the doctrine of abstention is unauthorized). See generally Gene R. Shreve, Pragmatism Without Politics - A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. REV. 767 (reviewing debate, and proposing a "middle ground"). Professor Whitten, in the article cited above, argues that separation of powers concerns also remove from the courts' powers matters as to which Congress has occupied the field with regulation. See also Linda J. Rusch, Separation of Powers Analysis as a Method for Determining the Validity of Federal District Courts' Exercise of Local Rulemaking Power: Application to Local Rules Mandating Alternative Dispute Resolution, 23 CONN. L. REV. 483, 503-04 (1991) (proposing a separation of powers analysis similar to Professor Whitten's to determine when courts may make local rules and when Congress must do so). Professor Whitten's analysis is not inconsistent with the thesis of this article, in that he agrees that in the absence of legislation, those matters would be within the inherent authority of the courts. It is contended in this Article that it is preferable to characterize the event as a "displacement" or "override" of the procedural common law. It is the contention of this Article also that the Rules Enabling Act does not purport to delegate to the Court authority to promulgate rules in areas where Congress has legislated extensively.
151. See U.S. CONST, art. III, § 2, cl. 3 (jury trial); U.S. CONST. art. III, § 3, cl. 1 (proof of treason); U.S. CONST. amend. V (grand jury and self-incrimination); U.S. CONST. amend. VI (trial by jury in criminal prosecutions and confrontation of witnesses); U.S. CONST. amend. VII (trial by jury in civil actions). In addition, many commentators argue, Article III and the constitutional structure place limits on the power of Congress to control the subject matter jurisdiction of the federal courts. The Supreme Court has reasoned that the greater power of Congress to create or abolish lower federal courts includes the lesser power to control their jurisdiction. See Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Some commentators argue, however, that Congress' power is not plenary, and cannot be used to deprive the courts of their "essential functions" of providing the ultimate determination as to meaning of federal law, and maintaining the supremacy of federal law. See, e.g., Sager, supra note 98 (arguing that Article III requires that a federal court be available for a constitutional challenge). But see Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 NW. U. L. REV. 143, 157 (1982) ("Congress has complete authority to have constitutional rights enforced exclusively in the state courts . . . ."). Much of the extensive debate on the issue is collected in RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 358-87 (4th ed. 1996) [hereinafter HART & WECHSLER].
152. See U.S. CONST, art. III, § 2, cl. 3 (jury trial); U.S. CONST. art. III, § 3, cl. 1 (proof of treason); U.S. CONST. amend. V (grand jury and self-incrimination); U.S. CONST. amend. VI (trial by jury in criminal prosecutions and confrontation of witnesses); U.S. CONST. amend. VII (trial by jury in civil actions). In addition, many commentators argue, Article III and the constitutional structure place limits on the power of Congress to control the subject matter jurisdiction of the federal courts. The Supreme Court has reasoned that the greater power of Congress to create or abolish lower federal courts includes the lesser power to control their jurisdiction. See Lockerty v. Phillips, 319 U.S. 182 (1943); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850). Some commentators argue, however, that Congress' power is not plenary, and cannot be used to deprive the courts of their "essential functions" of providing the ultimate determination as to meaning of federal law, and maintaining the supremacy of federal law. See, e.g., Sager, supra note 98 (arguing that Article III requires that a federal court be available for a constitutional challenge). But see Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 NW. U. L. REV. 143, 157 (1982) ("Congress has complete authority to have constitutional rights enforced exclusively in the state courts . . . ."). Much of the extensive debate on the issue is collected in RICHARD H. FALLON, JR. ET AL., HART AND WESCHLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 358-87 (4th ed. 1996) [hereinafter HART & WECHSLER].
153. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); see also ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 14 (1986) (noting that it has been accepted for 200 years that the court is the arbiter of the meaning of the Constitution).
154. See infra note 112 and accompanying text.
155. Cf. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825) (noting that "[t]he line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details").
156. See id. at 22; Livingston v. Story, 34 U.S. (9 Pet.) 632, 655 (1835) ("[T]hat the power to ordain and establish [federal courts], carries with it the power to describe and regulate the modes of proceeding in such courts, admits of . . . little doubt.").
157. Act of June 1, 1872, ch. 255, § 5, 17 Stat. 197. The 1872 Conformity Act provided for "dynamic" conformity; that is, the federal courts were to conform as nearly as possible to state procedure as it changed. For a summary of authority over federal court procedure under the prior Process Acts, see 1 JULIUS GOEBEL, HISTORY OF THE SUPREME COURT OF THE UNITED STATES, at 545-51 (1971).
158. 28 U.S.C. § 1652 (1994).
159. 41 U.S. (16 Pet.) 1 (1842).
160. 304 U.S. 64 (1938).
161. Id. at 78.
162. See id.
163. See Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60 (1986) (establishing a federal cause of action for negligence against interstate railroads by their employees who are injured in the course of their employment). In Mondou v. New York, N.H. & H.R. Co. (In re Second Employers' Liability Cases), 223 U.S. 1 (1912), decided twenty-five years before Erie, the Court held that FELA was a valid exercise of Congress' power under the commerce clause of Article I. See also NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). In NLRB, which was decided the year before Erie, the Court interpreted the commerce clause as reaching activities that were previously seen as local and thus beyond Congress' power: "[a]lthough activities may be intrastatc in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control." Id. at 37. See also Donald L. Doernberg, Juridical Chameleons in the "New Erie" Canal, 1990 UTAH L. REV. 759, at nn.17 & 202 and accompanying text (gathering contemporary commentary on Erie).
164. As Professor Monaghan has said, "Erie is, fundamentally, a limitation on the federal court's power to displace state law absent some relevant constitutional or statutory mandate which neither the general language of article III nor the jurisdictional statute provides." Henry P. Monaghan, Hart and Weschler's the Federal Courts and the Federal System, 87 HARV. L. REV. 889, 892 (1974) (book review) (citation omitted). See also Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682 (1974); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE 404 (1994).
165. As Professor Monaghan has said, "Erie is, fundamentally, a limitation on the federal court's power to displace state law absent some relevant constitutional or statutory mandate which neither the general language of article III nor the jurisdictional statute provides." Henry P. Monaghan, Hart and Weschler's the Federal Courts and the Federal System, 87 HARV. L. REV. 889, 892 (1974) (book review) (citation omitted). See also Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682 (1974); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE 404 (1994).
166. As Professor Monaghan has said, "Erie is, fundamentally, a limitation on the federal court's power to displace state law absent some relevant constitutional or statutory mandate which neither the general language of article III nor the jurisdictional statute provides." Henry P. Monaghan, Hart and Weschler's the Federal Courts and the Federal System, 87 HARV. L. REV. 889, 892 (1974) (book review) (citation omitted). See also Paul J. Mishkin, Some Further Last Words on Erie - The Thread, 87 HARV. L. REV. 1682 (1974); LARRY L. TEPLY & RALPH U. WHITTEN, CIVIL PROCEDURE 404 (1994).
167. Erie did not hold that there is no place for federal common law. Indeed, in another opinion by Justice Brandeis issued the same day, the Court announced that "whether the water of an interstate stream must be apportioned between . . . two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive." Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938). However, the proper scope of federal common law is the subject of much debate. For a discussion of some of the leading commentary on the issue, see HART & WESCHLER, supra note 99, at 752-58.
168. See Mishkin, supra note 111, at 1686 (arguing that the courts are inappropriate makers of laws intruding upon the states' views of social policy in the areas of social competence, and noting, in support, that the states and their interests are represented in Congress, but not in the federal courts); see also Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327 (1992); Larry Kramer, The Lawmaking Power of the Federal Courts, 12 PACE L. REV. 263 (1992); Doernberg, supra note 110, at 803 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)) ("[I]t is . . . the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them . . . .").
169. See Mishkin, supra note 111, at 1686 (arguing that the courts are inappropriate makers of laws intruding upon the states' views of social policy in the areas of social competence, and noting, in support, that the states and their interests are represented in Congress, but not in the federal courts); see also Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327 (1992); Larry Kramer, The Lawmaking Power of the Federal Courts, 12 PACE L. REV. 263 (1992); Doernberg, supra note 110, at 803 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)) ("[I]t is . . . the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them . . . .").
170. Erie, 304 U.S. at 92 (Reed, J., concurring).
171. 326 U.S. 99 (1945).
172. See id. at 109.
173. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (discussed infra note 191).
174. Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (discussed infra note 192).
175. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949) (discussed infra note 193).
176. See Edward Lawrence Merrigan, Erie to York to Regan - A Triple Play on the Federal Rules, 3 VAND. L. REV. 711 (1950) and C. WRIGHT, THE LAW OF THE FEDERAL COURTS (5th ed. 1994).
177. See Edward Lawrence Merrigan, Erie to York to Regan - A Triple Play on the Federal Rules, 3 VAND. L. REV. 711 (1950) and C. WRIGHT, THE LAW OF THE FEDERAL COURTS (5th ed. 1994).
178. See York, 326 U.S. at 106.
179. 356 U.S. 525 (1958).
180. Charles E. Clark, Federal Procedural Reform and States' Rights; to a More Perfect Union, 40 TEXAS L. REV. 211, 220 (1961).
181. Byrd, 356 U.S. at 537.
182. The Court did not decide whether the result was mandated by the Seventh Amendment, choosing instead to leave that question open. See Byrd, 356 U.S. at 538. In a subsequent case, Simler v. Connor, 372 U.S. 221 (1963), the Court held that the Seventh Amendment does apply to diversity cases.
183. See Byrd, 356 U.S. at 538. The Byrd case does not make clear, however, just which "affirmative countervailing considerations" will justify departures from state practice. See generally WRIGHT ET AL., supra note 72, § 4504; TEPLY & WHITTEN, supra note 111, at 421-24.
184. 380 U.S. 460 (1965).
185. Id. at 466-67.
186. See id. (citing Byrd).
187. Id. at 468.
188. Id. at 472.
189. WRIGHT ET AL., supra note 72, § 4505.
190. Hanna, 380 U.S. at 476 (Harlan, J., concurring) (arguing that the majority test for Congress' Article III power was inconsistent with the allocation of power between the state and federal systems, in that it permitted a federal rule that could reasonably be classified as procedural to apply in federal court "no matter how seriously it frustrated a State's substantive regulation of the primary conduct and affairs of its citizens").
191. Although the Court in Hanna recognized that the Rules Enabling Act presented a limit on the rulemaking authority of the Court independent of the constitutional limits on Congress' authority, in other parts of the decision the Court seemed to conflate the constitutional test with the test for validity under the REA. See infra text accompanying notes 221-222.
192. The state statute involved in Hanna was also, in part, a statute of limitations. The Court found, rather dubiously, that part of the statute was not implicated, as the action clearly was timely commenced. See Hanna, 380 U.S. at 462 n.1.
193. Justice Harlan, who strenuously objected to the broad power afforded Congress by the majority position, agreed with the result in the case, on the grounds that applying the federal rule would not impinge on the vitality of the state policy served by the state rule. See Hanna, 380 U.S. at 478 (Harlan, J., concurring).
194. 487 U.S. 22 (1988).
195. Id. at 32.
196. See, e.g., Margaret G. Stewart, Political Federalism and Congressional Truth-Telling, 42 CATH. U. L. REV. 511, 536-43 (1993); id. at 538 ("Even assuming that the congressional command to enforce forum selection clauses is clearly expressed, there remains a concern with the source of congressional authority to displace contrary state law."); see also Richard D. Freer, Erie's Mid-Life Crisis, 63 TUL. L. REV. 1087, 1130 (1989) ("The increasing ease with which the Court invokes Hanna is a danger to separation of powers and to federalism.").
197. See, e.g., Margaret G. Stewart, Political Federalism and Congressional Truth-Telling, 42 CATH. U. L. REV. 511, 536-43 (1993); id. at 538 ("Even assuming that the congressional command to enforce forum selection clauses is clearly expressed, there remains a concern with the source of congressional authority to displace contrary state law."); see also Richard D. Freer, Erie's Mid-Life Crisis, 63 TUL. L. REV. 1087, 1130 (1989) ("The increasing ease with which the Court invokes Hanna is a danger to separation of powers and to federalism.").
198. WRIGHT ET AL., supra note 72, § 4505.
199. Charles Alan Wright, Procedural Reform: Its Limitations and Its Future, 1 GA. L. REV. 563, 572 (1967) (citing 8 WIGMORE, EVIDENCE §2285 (McNaughton rev. 1961)).
200. Charles Alan Wright, Procedural Reform: Its Limitations and Its Future, 1 GA. L. REV. 563, 572 (1967) (citing 8 WIGMORE, EVIDENCE §2285 (McNaughton rev. 1961)).
201. See Goldberg, supra note 37, at 682 ("[R]ules of privilege are substantive within the meaning of the Erie doctrine and therefore must yield to state law in diversity suits.") (collecting authorities); see also Stewart, supra note 139, at 530-34. Cf. Wright, supra note 141, at 572 (concluding that under the Hanna decision, it appears that Congress and the Court constitutionally could adopt a federal rule denying a privilege where the state would grant one, but urging that such a rule not be adopted, as it would be an indefensible intrusion into state policy). Note that in 28 U.S.C. §2074 (b), Congress has forbidden the Supreme Court to promulgate rules overriding state privilege rules without congressional approval. This provision could be read to reflect Congress' belief that it has constitutional authority to promulgate or approve such provisions if it so desired. Regardless, Congress has not attempted to exercise such power, apparently out of concern both for the states' interests and because of the ambiguity as to the constitutional limits of Congress' power. For present purposes, it is more significant that Congress has made clear it has not delegated any such authority to the Court, reflecting the belief that the decision to override state law should be made by Congress, and not the Court. Cf. Mishkin, supra note 111, at 1685 (arguing that the constitutional structure confines that authority to Congress, where the states and their interests are represented); Rowe, supra note 4, at 982 (arguing that by § 2072(b), Congress has prohibited Federal Rules that conflict with state laws reflecting substantive state policy). This Article contends that state legislative policy is not determinative of the validity of a federal rule.
202. Carrington, supra note 86, at 1001. Professor Carrington concluded that "Congress may lack power to enact a fee-shifting rule designed to induce settlement of all civil cases in federal courts, and almost certainly lacks the power to enact a fee-shifting rule fashioned to induce settlement only of diversity cases." Id. at 1002.
203. Cf. United States v. Lopez, 514 U.S. 549 (1995) (striking down a statute making it a federal offense for a person knowingly to possess a firearm within a school zone, on the grounds it was not a valid use of commerce clause powers).
204. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
205. 350 U.S. 198 (1956).
206. Id. at 202. In his concurring opinion, Justice Frankfurter stated: I agree with the Court's opinion that the differences between arbitral and judicial determination of a controversy under a contract sufficiently go to the merits of the outcome, and not merely because of the contingencies of different individuals passing on the same question, to make the matter one of "substance" in the sense relevant for Erie. . . . In view of the ground that was taken in that case for its decision, it would raise a serious question of constitutional law whether Congress could subject to arbitration litigation in the federal courts which is there solely because it is "between Citizens of different States," . . . in disregard of the law of the State in which a federal court is sitting. Id. at 207-08 (Frankfurter, J., concurring). Some commentators have criticized the suggestion in Bernhardt that Congress cannot "invade the field" of "local law." See Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity?, 78 MICH. L. REV. 311, 355 (1980) ("[I]t is a fundamental mistake to think that the constitutional authority of the federal government is limited or demarcated by rigid 'enclaves' of 'local' law. The only significant constitutional question in any Erie case is whether the pertinent federal rule falls within one of Congress' enumerated powers.") (citing Ely, supra note 1, at 701-02). In Bernhardt, however, the Court read the Arbitration Act narrowly in order to avoid that precise constitutional question of whether Article III gives Congress the power to require arbitration in diversity cases.
207. WRIGHT ET AL., supra note 72, §4505. See also Freer, supra note 139, at 1128 (arguing that Stewart and Bernhardt are irreconcilable).
208. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967). For a critical discussion of the Bernhardt and Prima Paint decisions, see Westen & Lehman, supra note 147, at 353-56.
209. Id. at 405: The question in this case . . . is not whether Congress may fashion federal substantive rules to govern questions arising in simple diversity cases. See Bernhardt . . . Rather, the question is whether Congress . . . plainly has power to legislate. The answer to that can only be in the affirmative. And it is clear beyond dispute that the federal arbitration statute is based upon and confined to the incontestable federal foundations of "control over interstate commerce and over admiralty." (citation omitted). In subsequent cases, the Court ruled that the 1925 federal Arbitration Act, as an exercise of Congress' Article I powers, preempts state law and applies to cases in state court involving interstate commerce. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983) ("[S]tate courts, as much as federal courts, are obliged to grant stays of litigation under § 3 of the Arbitration Act."); see also Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996); Southland Corp. v. Keating, 465 U.S. 1 (1984). The result of this line of cases is that a procedural statute intended to govern proceedings in federal courts, which was enacted by Congress as an exercise of its constitutional powers over federal courts, became a statute regulating interstate commerce. See IAN R. MACNEIL, AMERICAN ARBITRATION LAW: REFORMATION, NATIONALIZATION, INTERNATIONALIZATION 169 (1992). For a criticism of the Court's jurisprudence in the area, see Paul D. Carrington & Paul H. Haagen, Contract and Jurisdiction, 1996 SUP. CT. REV. 331, 332 ("[T]he Court has completely federalized a body of law that was until recently regarded as an appropriate subject for the exercise of state sovereignty . . . .").
210. Id. at 405: The question in this case . . . is not whether Congress may fashion federal substantive rules to govern questions arising in simple diversity cases. See Bernhardt . . . Rather, the question is whether Congress . . . plainly has power to legislate. The answer to that can only be in the affirmative. And it is clear beyond dispute that the federal arbitration statute is based upon and confined to the incontestable federal foundations of "control over interstate commerce and over admiralty." (citation omitted). In subsequent cases, the Court ruled that the 1925 federal Arbitration Act, as an exercise of Congress' Article I powers, preempts state law and applies to cases in state court involving interstate commerce. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983) ("[S]tate courts, as much as federal courts, are obliged to grant stays of litigation under § 3 of the Arbitration Act."); see also Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681 (1996); Southland Corp. v. Keating, 465 U.S. 1 (1984). The result of this line of cases is that a procedural statute intended to govern proceedings in federal courts, which was enacted by Congress as an exercise of its constitutional powers over federal courts, became a statute regulating interstate commerce. See IAN R. MACNEIL, AMERICAN ARBITRATION LAW: REFORMATION, NATIONALIZATION, INTERNATIONALIZATION 169 (1992). For a criticism of the Court's jurisprudence in the area, see Paul D. Carrington & Paul H. Haagen, Contract and Jurisdiction, 1996 SUP. CT. REV. 331, 332 ("[T]he Court has completely federalized a body of law that was until recently regarded as an appropriate subject for the exercise of state sovereignty . . . .").
211. See also Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir. 1984). In Moe, the court held that Federal Rule of Evidence 407, which excludes evidence of subsequent remedial measures as proof of culpability (and which was enacted by Congress), was not applicable in a diversity case when state law would admit the evidence, on the ground that the matter was one of state substantive law, and that to apply the Federal Rule would be an "unwarranted incursion into the Erie doctrine." Id. at 932. But see Flaminio v. Honda Motor Co., 733 F.2d 463 (7th Cir. 1984).
212. But see Stewart, supra note 139, at 533 ("[T]he limitation Congress has imposed on the Supreme Court's rulemaking power - that procedural and evidentiary rules must not displace substantive law - should be imposed on Congress as well if Congress lacks the authority to create the substantive law it displaces. Otherwise, the general police power which the constitutional structure sought to keep out of federal hands may creep in through a door thought to be locked by Erie.").
213. The proposed rules of evidence are reprinted at 56 F.R.D. 183 (1972). For an overview of the proposed rules, see generally William L. Hungate, An Introduction to the Proposed Rules of Evidence, 32 FED. B.J. 225 (1973).
214. The proposed rules of evidence are reprinted at 56 F.R.D. 183 (1972). For an overview of the proposed rules, see generally William L. Hungate, An Introduction to the Proposed Rules of Evidence, 32 FED. B.J. 225 (1973).
215. See Advisory Committee Notes to Rule 501, Proposed Rules of Evidence, 56 F.R.D. at 233 (arguing that after Hanna, the decision whether to give state privileges effect was one "of choice rather than necessity"). In support of the Committee's conclusion, see Wright, supra note 141, at 573. But see Goldberg, supra note 37, at 682 n.86 ("It is likely that the Advisory Committee, relying on the Court's application in Hanna of a federal rule of civil procedure which contravened state law, reasoned that an analogous situation would exist if a federal rule of evidence contravened state law. However, this analogy is untenable because it fails to consider the inherent differences between a rule of procedure regulating service of process and a rule of evidence involving significant substantive rights.").
216. Act of March 30, 1973, Pub. L. No. 93-12, 87 Stat. 9. The title of the Act, an "Act to promote the separation of constitutional powers," indicates Congress' concern that the Court had overstepped its constitutional and statutory rulemaking authority.
217. Act of January 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926. For a detailed recounting of Congress' intervention and redrafting of the evidence rules, see WRIGHT & GRAHAM, 21 FEDERAL PRACTICE & PROCEDURE: EVIDENCE, § 5006 (1977).
218. See Fed. R. EVID. 501 ("[I]n civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness . . . shall be determined in accordance with State law."). References to state law are found also in Federal Rule of Evidence 302, which concerns the effect of presumptions, and Rule 601, which concerns the competency of witnesses.
219. 28 U.S.C. § 2072(b) (1994).
220. See, e.g., Walsh, supra note 83; Redish, supra note 83.
221. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825).
222. Indeed, as discussed below, the matters as to which rulemaking authority has been delegated to the Court are narrower than the area of matters as to which the courts have inherent authority to make common law procedural pronouncements. It does not follow, however, that the REA was unnecessary surplusage. Even though the judicial branch has inherent authority in the area reached by the delegation, the ambiguity as to whether that inherent authority includes authority to promulgate prospective rules is enough to demonstrate the necessity, or at least wisdom, of the delegation in the Rules Enabling Act. See supra text accompanying note 69. The delegation to the Court can also be seen as a statement of congressional intent generally to defer to the Court in this area. Furthermore, even if it were uncontested that the Supreme Court has constitutional authority to promulgate supervisory rules of procedure for federal courts, the Court, acting without any assistance from the Judicial Conference or its committees, is hardly up to the task. Thus, the process established by the Rules Enabling Act, and the "rulemaking infrastructure" created by Congress, has an independent value. Cf. Carrington, supra note 86, at 974-75.
223. Cf. Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719 (1980). In Consumers Union, the Court found that in promulgating disciplinary rules for the Bar, the Virginia Supreme Court was acting in a legislative capacity, as the disciplinary rules "'are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated, but instead out of a need to regulate conduct for the protection of all citizens.'" Id. at 731 (citing Consumers Union v. American Bar Ass'n, 470 F. Supp. 1055, 1064 (1979) (Warriner, J., dissenting in part and concurring in part)). Rules of procedure, on the other hand, operate only on litigants, not anyone outside of the courtroom.
224. See Sibbach v. Wilson, 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution [sic] of the United States . . . .") (footnote omitted); see also Mistretta v. United States, 488 U.S. 361, 387-88 (1989) (citing Sibbach, 312 U.S. at 9-10, for authority that delegation under the Rules Enabling Act is an example of a constitutionally permissible delegation to the Court); Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 437-41 (1976) (concluding that the delegation of the REA is valid); Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15, 71-72 (1977) (concluding the delegation of rulemaking authority in the REA is valid, but contesting the validity of the supersession clause). But see Redish, supra note 83, at 316 (arguing that the delegation of rulemaking power is violative of separation of powers concerns, and reading Sibbach as not directly ruling on the validity of the REA under the case-or-controversy requirement).
225. See Sibbach v. Wilson, 312 U.S. 1, 9-10 (1941) ("Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution [sic] of the United States . . . .") (footnote omitted); see also Mistretta v. United States, 488 U.S. 361, 387-88 (1989) (citing Sibbach, 312 U.S. at 9-10, for authority that delegation under the Rules Enabling Act is an example of a constitutionally permissible delegation to the Court); Carole E. Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 437-41 (1976) (concluding that the delegation of the REA is valid); Robert N. Clinton, Rule 9 of the Federal Habeas Corpus Rules: A Case Study on the Need for Reform of the Rules Enabling Acts, 63 IOWA L. REV. 15, 71-72 (1977) (concluding the delegation of rulemaking authority in the REA is valid, but contesting the validity of the supersession clause). But see Redish, supra note 83, at 316 (arguing that the delegation of rulemaking power is violative of separation of powers concerns, and reading Sibbach as not directly ruling on the validity of the REA under the case-or-controversy requirement).
226. See, e.g., Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935).
227. 28 U.S.C. § 2072(a), (b) (1994).
228. See 28 U.S.C. § 2073 (1994). The efficacy of that oversight is, admittedly, rather limited. See infra text accompanying notes 231-33.
229. Mistretta, 488 U.S. at 383. But see Redish, supra note 83, at 311-14 (arguing that Mistretta's functional test for separation of powers is "all but unworkable." Id. at 311)). See also Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), and the discussion of that case in Van Alstyne, supra note 68, at 124-25.
230. 28 U.S.C. § 2072(b) (1994). The 1934 Rules Enabling Act's supersession provision was substantially the same: "[The rules] shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect." Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064.
231. See Burbank, supra note 32, at 1050-54. See also Clinton, supra note 163, at 65, 77; H.R. REP. No. 99-422, at 16 (1985) (citing Burbank, supra note 32); Rules Enabling Act: Hearing Before the Subcomm. on Courts and Administrative Practice of the Comm. on the Judiciary, United States Senate, 100th Cong. 1077 (1988).
232. See Burbank, supra note 32, at 1050-54. See also Clinton, supra note 163, at 65, 77; H.R. REP. No. 99-422, at 16 (1985) (citing Burbank, supra note 32); Rules Enabling Act: Hearing Before the Subcomm. on Courts and Administrative Practice of the Comm. on the Judiciary, United States Senate, 100th Cong. 1077 (1988).
233. On occasion, the Court has stated that it has no authority to promulgate Rules inconsistent with federal statutes. See, e.g., Palermo v. United States, 360 U.S. 343, 353 n.11 (1959) ("The power of the Court to prescribe rules of procedure exists only in the absence of a relevant Act of Congress.") In Granny Goose Foods, Inc. v. Teamsters Local No. 70, 94 S. Ct. 1113, 1122 (1974) (Adv. Sheet ed.), the Court stated "We do not doubt that were there an actual conflict between [a statute] and [a Rule] the statute would control." The opinion was revised to delete this statement when the bound volume of the reports was issued. See Clinton, supra note 163, at 73. In other decisions, the Court has appeared to assume the validity of the provision. See Henderson v. United States, 517 U.S. 654 (1996). In Henderson, the supersession issue was not squarely presented, as the Rule in question had been enacted by Congress. The Court, however, appeared to assume the validity of that provision when it noted that "[a]s the United States acknowledges . . . a Rule made law by congress supersedes conflicting laws no less than a Rule this Court prescribes." Id. at 1646. Cf. Davis v. United States, 411 U.S. 233 (1973) (assuming first that a similar supersession provision for the Rules of Criminal Procedure would result in the repeal of a statute by a later enacted rule, but then noting that the supersession was a "difficult question" the Court need not face in that case). Cf. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1940) (stating first that Congress may delegate to the courts "authority to make rules not inconsistent with the statutes or Constitution of the United States," and then stating that "the rules, if they are within the authority granted by Congress, repeal [the Conformity Act]). In note 40 of its decision, the Court distinguished the REA's supersession clause from the Line Item Veto Act.
234. 118 S. Ct. 2091 (1998).
235. INS v. Chadha, 462 U.S. 919 (1983).
236. Id. at 952.
237. In this respect, the delegation of authority to cancel laws under the REA is very different than the delegation in the Line Item Veto Act. The REA in no way aggrandizes the power of the judiciary beyond that envisaged in the constitutional structure. Providing the President with a line item veto, by contrast, results effectively in an end- run around the constitutional scheme set up in Article I, whereby the President is permitted a veto only of legislation prior to its passage, and has no inherent authority to cancel legislation after enactment pursuant to Article I. Cf. Clinton, 118 S. Ct. 2091 (1998).
238. See H.R. Rep. No. 99-422, at 13-17 (1985).
239. With the Rules of Evidence, Congress singled out Rules governing privileges as substantive, and thus requiring an affirmative act of Congress. Under 28 U.S.C. § 2074(b) (1994), any Court-promulgated Rule "creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See infra note 284 and accompanying text.
240. See Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 DUKE L. J. 281, 325. But see Burbank, supra note 4, at 1044 ("As originally formulated, the supersession clause was intended to 'clear . . . undergrowth,' although it was by no means limited to 'procedural marginalia.' Nor is it so limited today. . . .") (citations omitted).
241. See Sibbach v. Wilson, 312 U.S 1 (1941); cf. Rowe, supra note 4, at 982 (arguing that Rule 35 would be invalid in the face of a state law reflecting a substantive policy choice). This Article, in Part IV.B, below, disputes Professor Rowe's thesis, and contends that the legislative policy of the state legislature is not determinative of the validity of federal Rules).
242. See Burbank, supra note 4, at 1036-37 (arguing that if the Court had promulgated amendments to Rule 68 that had been proposed in 1983 and 1984, and which appeared to transgress the "substantive rights" limitations of the REA, the Court also would have found that the Rule superseded conflicting statutes governing attorney's fees, a result he considers violative of the Constitution).
243. 28 U.S.C. § 2072 (1988). The 1934 version of the Act was similar, but provided only for rules of civil procedure: Be it enacted, etc., That the Supreme Court of the United States shall have the power to prescribe, by general rules, for the district courts of the United States and for the courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant. They shall take effect six months after their promulgation, and thereafter all laws in conflict therewith shall be of no further force or effect. Act of June 19, 1934, Pub. L. No. 73-415, 48 Stat. 1064 (repealed 1988). Before the 1988 legislation amending the Act, which provided a uniform mechanism for promulgating rules of procedure and evidence, authority to enact rules of evidence and promulgate rules of procedure in criminal cases, criminal proceedings and bankruptcy proceedings was contained in separate statutes. See, e.g., Act of Jan 2, 1975, Pub. L. No. 93-595, § 2(a) (1), 88 Stat. 1926, 1948-49, amended by Act of Dec. 12, 1975, Pub. L. No. 94-149, § 2, 89 Stat. 805 (rules of evidence). These Acts were repealed by the Judicial Improvements and Access to Justice Act (the 1988 Rules Enabling Act), Pub. L. No. 100-702, tit. IV, § 401 (c), 102 Stat. 4642, 4650 (1988); 28 U.S.C. § 2075 (1970) (bankruptcy rules); 28 U.S.C. §§ 3402, 3771, 3772 (1970) (criminal procedure). See generally Burbank, supra note 32, for an exhaustive and illuminating history of the Rules Enabling Act.
244. Since 1958, the Judicial Conference has been legislatively charged with carrying on "a continuous study of the operation and effect of the general rules of practice and procedure." Act of July 11, 1958, Pub. L. No. 85-513, 72 Stat. 356 (codified as 28 U.S.C. § 331 (1994)). The Judicial Conference created the Standing Committee on Rules of Practice and Procedure, and five Advisory Committees, including one on the rules of civil procedure. See JUDICIAL CONFERENCE OF THE UNITED STATES, ANNUAL REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 6-7 (1958). For a description of the rulemaking process generally, by the then-Reporter for the Advisory Committee on the Civil Rules, see Carrington, supra note 29, at 2119-24.
245. For a discussion of the Supreme Court's role in the rulemaking process, see Moore, supra note 38.
246. 28 U.S.C. § 2074 (1994).
247. Id.
248. Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and the Common Law, 63 NOTRE DAME L. REV. 693, 700 (1988).
249. Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
250. Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945).
251. See Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958).
252. Hanna v. Plumer, 380 U.S. 460, 471 (1965).
253. See, e.g., Abram Chayes, Some Further Last Words on Erie - The Bead Game, 87 HARV. L. REV. 741 (1974); Ely, supra note 1, at 718-40; John Hart Ely, The Necklace, 87 HARV. L. REV. 753 (1974); Mishkin, supra note 111, at 1686-87 (1974) (recognizing that the substantive rights limitation in the Rules Enabling Act reflects separation of powers considerations, but considering the substantive rights limitation as primarily resting on federalism concerns; the "constitutional perception that [federal] courts are inappropriate makers of laws intruding upon the states' views of social policy in the areas of state competence"); see also Darrell N. Braman, Jr. & Mark D. Neumann, The Still Unrepressed Myth of Erie, 18 U. BALT. L. REV. 403 (1989) (analyzing lower court decisions against the 'benchmark' of Professor Ely's analysis).
254. See, e.g., Abram Chayes, Some Further Last Words on Erie - The Bead Game, 87 HARV. L. REV. 741 (1974); Ely, supra note 1, at 718-40; John Hart Ely, The Necklace, 87 HARV. L. REV. 753 (1974); Mishkin, supra note 111, at 1686-87 (1974) (recognizing that the substantive rights limitation in the Rules Enabling Act reflects separation of powers considerations, but considering the substantive rights limitation as primarily resting on federalism concerns; the "constitutional perception that [federal] courts are inappropriate makers of laws intruding upon the states' views of social policy in the areas of state competence"); see also Darrell N. Braman, Jr. & Mark D. Neumann, The Still Unrepressed Myth of Erie, 18 U. BALT. L. REV. 403 (1989) (analyzing lower court decisions against the 'benchmark' of Professor Ely's analysis).
255. See, e.g., Abram Chayes, Some Further Last Words on Erie - The Bead Game, 87 HARV. L. REV. 741 (1974); Ely, supra note 1, at 718-40; John Hart Ely, The Necklace, 87 HARV. L. REV. 753 (1974); Mishkin, supra note 111, at 1686-87 (1974) (recognizing that the substantive rights limitation in the Rules Enabling Act reflects separation of powers considerations, but considering the substantive rights limitation as primarily resting on federalism concerns; the "constitutional perception that [federal] courts are inappropriate makers of laws intruding upon the states' views of social policy in the areas of state competence"); see also Darrell N. Braman, Jr. & Mark D. Neumann, The Still Unrepressed Myth of Erie, 18 U. BALT. L. REV. 403 (1989) (analyzing lower court decisions against the 'benchmark' of Professor Ely's analysis).
256. The decision in Erie was rendered on April 25, 1938. The Rules of Civil Procedure first came into effect on Sept. 16, 1938.
257. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (holding that a federal court sitting in diversity was obligated to apply state law requiring a bond in derivative suit, and that Federal Rule of Civil Procedure 23, which governed derivative suits, did not address a bond requirement).
258. Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (holding that a federal court sitting in diversity was required to apply a state statute prohibiting foreign corporations not qualified to do business in the state from suing in the state, but failing to consider the potential conflict between that state law and Federal Rule of Civil Procedure 17(b), which governs capacity to sue and be sued in a federal court).
259. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949) (holding that state law requiring service of a summons to toll the statute of limitations applied, and finding that the provision in Rule 3 for commencement of the action upon filing did not govern tolling).
260. See, e.g., Merrigan, supra note 120, at 717 ("The York case, of necessity, spelled death to the hope for a completely uniform federal procedure."); see also WRIGHT, supra note 120, § 59, at 401-03 ("Many observers believed . . . that [after Cohen, Woods and Ragan were decided] there was no longer much, if any, room for independent federal regulation of procedure. . . . After the three 1949 decisions the draftsman of the rules said that 'hardly a one of the heralded Federal Rules can be considered safe from attack.'") (citations omitted). For a discussion and explanation of the confusion about the meaning of these cases, see Ralph U. Whitten, Erie and the Federal Rules: A Review and Reappraisal After Burlington Northern Railroad v. Woods, 21 CREIGHTON L. REV. 1, 2-12 (1987).
261. 380 U.S. 460 (1965).
262. See id. at 465. In his influential and seminal article, The Irrepressible Myth of Erie, Professor Ely clarified even further the distinctions drawn in Hanna. Ely, supra note 1. Professor Burbank has stated that while Professor Ely's article was helpful in dispelling the "myth" that the Erie analysis governed in cases concerning the Federal Rules: [it helped] to entrench another . . . the myth of federalism, which would have us believe that, four years before Erie - when Swift v. Tyson was in full flower - and in a statute authorizing rules of practice and procedure for all civil litigation in the federal courts - litigation that even in the early 1930's involved predominantly questions of federal substantive law - Congress was only concerned, or even primarily concerned, about the inappropriate displacement of state law. Burbank, supra note 184, at 700.
263. Burbank, supra note 32.
264. See, e.g., Moore, supra note 38, at 1043; Carrington & Apanovitch, supra note 4, at 298.
265. Burbank, supra note 184, at 700.
266. See generally Burbank, supra note 32.
267. See Carrington, supra note 177; Carrington & Apanovitch, supra note 4, at 480.
268. 41 U.S. (16 Pet.) 1 (1842).
269. See Burbank, supra note 184, at 700; see also Moore, supra note 38, at 1043.
270. On the legislative history of the 1988 Rules Enabling Act, see generally Burbank, supra note 4, at 1029-40. See also Moore, supra note 38, at 1047-51.
271. Burbank, supra note 184, at 700-01.
272. See H.R. REP. 99-122, at 22 (1985).
273. See supra note 98. In this regard, the grant to the Court of authority to make rules defining the appellate jurisdiction of circuit courts of appeals, see 28 U.S.C. §§ 1292(e), 2072(c) (1994), raises interesting questions of constitutional validity, which, though deserving of study, are beyond the scope of this Article.
274. Venue is beyond the power of the Court because, by virtue of longstanding and extensive regulation by Congress, it involves a "substantive right" within the meaning of the REA. Cf. Whitten, supra note 70. In the absence of congressional legislation, however, courts could exercise inherent
275. See H.R. REP. 99-422, at 22 (1985) ("The bill does not confer power on the Supreme Court to promulgate rules regarding matters, such as limitations and preclusion, that necessarily and obviously define or limit rights under the substantive law."). There is, however, some inherent judicial power to determine the time in which actions must be filed, as illustrated by the doctrine of laches. Nonetheless, there may be constitutional limitations on the Court's - and Congress' - ability to declare limitations periods for matters governed by state law. See infra note 310 and accompanying text.
276. There is some debate as to whether Congress could delegate to the Court authority to make rules that affect substantive rights. To a large extent, that debate is tied up with the debate as to the meaning of the phrase "substantive rights" in the Rules Enabling Act. Some commentators argue that the restriction on Rules affecting substantive rights merely incorporates restrictions imposed by the doctrine of separation of powers, and particularly by the Article III requirement that the Court make law only in "cases or controversies" before it. See Mishkin, supra note 111, at 1686-87: Congress' explicit refusal to delegate to the Court any power to "abridge, enlarge or modify any substantive right" in my view rests upon - and restates - the constitutional perception that courts are inappropriate makers of laws intruding upon the states' view of social policy in the areas of state competence. Courts interpreting that Act are under a duty to give full scope to that prohibition - a legislative prohibition expressive of basic constitutional principles not only of federalism but also of differentiation of powers. (emphasis added). Compare Carrington, supra note 177, at 287 ("[T]he Court cannot make substantive rules by any means other than writing opinions in 'cases or controversies' without taking leave of its role as defined by Article III.") with Burbank, supra note 32, at 1113 (arguing that the legislative history of the Act indicates that the Act's substantive rights limitation was intended to impose a limitation on the Court's rulemaking authority independent of, and in addition to, the constitutional separation of powers restrictions).
277. See infra text accompanying notes 223-25. Furthermore, the Court does seem to recognize that not all of Congress' power over procedure may be delegated to the Court because of separation of powers concerns. For example, in Sibbach, the Court noted: "There are other limitations upon the authority to prescribe rules which might have been, but were not mentioned in the Act; for instance, the inability of a court, by rule, to extend or restrict the jurisdiction conferred by a statute." Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941).
278. 312 U.S. 1 (1941).
279. For an argument that the text of the Rules Enabling Act contemplates that some procedural rules may impermissibly affect substantive rights, and thus are beyond the scope of authority delegated to the Court, see Ely, supra note 1, at 718-19. See also Rowe, supra note 4, at 977-81; Whitten, supra note 195, at 5.
280. Sibbach, 312 U.S. at 14.
281. Id. at 13.
282. Act of June 1, 1872, ch. 255, § 5,17 Stat. 196, 197 (1872). The Conformity Act required that federal trial courts in cases at common law follow the procedure of the state in which they were located.
283. Cf. Ely, supra note 1, at 702 (describing the Erie decision as a "creature of its time").
284. The Court assumed also that if the Rule was substantive within the meaning of the REA, it would be substantive also for conflicts of law purposes, and thus the Indiana state rule would govern, to allow the examination. Here the Court went further astray in assuming that substance and procedure have the same meaning for all purposes.
285. Hanna v. Plumer, 380 U.S. 460, 472 (1965).
286. In his article Rules Enabling Act of 1934, Professor Burbank argued that the limiting language of the 1934 Act, prohibiting the promulgation of rules that "modify, abridge or enlarge substantive rights," was surplusage, serving only to emphasize the inherent restriction in the use of the word "procedure," which, he argued, referred only to matters of pure procedure fit for regulation by courts. Regardless, he was critical of the Court's decisions in Sibbach and other cases, as upholding rules that exceed the authority delegated to the Court. See Burbank, supra note 32, at 1107-08. Professor Ely, by contrast, concluded that the limiting language was not surplusage. See Ely, supra note 1, at 718-19; see also Rowe, supra note 4, at 981.
287. See Hanna, 380 U.S. at 464 (holding that Rule 4(d)(1) "neither exceeded the congressional mandate embodied in the Rules Enabling Act nor transgressed constitutional bounds").
288. Mistretta v. United States, 488 U.S. 361, 392 (1989) (Blackmun, J.) (citing Hanna, 380 U.S. at 472.) See also Gasperini v. Center for the Humanities, Inc 518 U.S. 415, 468 (1996) (Scalia, J., dissenting).
289. 326 U.S. 438 (1946).
290. Id. at 445.
291. Id. at 445-46 (citations omitted).
292. 480 U.S. 1 (1986). For a criticism of Burlington, see Whitten, supra note 194.
293. Burlington, 480 U.S. at 5 (citing, inter alia, Hanna and Mississippi Publ'g).
294. See Hanna, 380 U.S. at 471; see also Burlington, 480 U.S. at 6.
295. See Sibbach v. Wilson & Co., 312 U.S. 1, 15-16 (1941); Hanna, 380 U.S. at 471.
296. Sibbach, 312 U.S. at 18 (Frankfurter, J., dissenting).
297. See Mishkin, supra note 111, at 1687 ("One important aspect of the fallacy [of the conclusion that Congressional inaction is an approval of the Rules] may be perceived from the fact that Congress will be deemed to have failed to act even if both Houses have passed specific bills so long as the two have not adopted identical language."); see also Burbank, supra note 32, at 1102.
298. See supra text accompanying note 48.
299. See Mishkin, supra note 111, at 1688 ("Where - as in the second sentence of the Rules Enabling Act - Congress has affirmatively enacted explicit limits on the authority it is delegating, it should not be put in the position of having to act affirmatively through both Houses again in order to prevent usurpation.").
300. Order of Jan. 21, 1963, 374 U.S. 865, 869-70 (Black and Douglas, JJ., dissenting). See also Order of Feb. 28, 1966, 383 U.S. 1031, 1032 (Douglas, J., dissenting).
301. Order of Apr. 19, 1980, 446 U.S. 997, 997-98 n.1 (Powell, Stewart and Rehnquist, JJ., dissenting).
302. Order of Apr. 22, 1993, Amendments to the Federal Rules of Civil Procedure, reprinted in 146 F.R.D. 402, 505 (Statement of Justice White). On the Court's role in the rulemaking process, see generally Moore, supra note 38, at 1061-73.
303. Order of Apr. 22, 1993, Amendments to the Federal Rules of Civil Procedure, reprinted in 146 F.R.D. 402, 403 (letter from Chief Justice William H. Rehnquist to Speaker of the House Thomas S. Foley, Apr. 22, 1993).
304. Mistretta v. United States, 488 U.S. 361, 392 (1989).
305. Burbank, supra note 32.
306. Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941).
307. H.R. REP. No. 99-422, at 5 (1985). Technical and typographical errors in the Report were corrected at 132 CONG. REC. E1434 (1986). This is the report on H.R. 3550, whose language amending 28 U.S.C. § 2072, apart from language with respect to the supersession clause (not at issue here) was identical to that ultimately passed in 1988. The Report on the 1988 House bill (which was the source of, and identical to, the Senate bill) incorporated by reference House Report number 99-422. See H.R. REP. No. 100-889 at 29 (1988). For a discussion of the legislative history of the 1988 amendments to the Rules Enabling Act, see Burbank, supra note 4, at 1030-36. See also Moore, supra note 38, at 1043-49. Both Professors Burbank and Moore conclude that the House Report is the best evidence of congressional intent with the Act. See also Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2302-03 (1998). As discussed in note 256 below, however, the Senate Report provides contradictory evidence of congressional intent, which could make the House Report seem, at least to those hostile to the use of legislative history, a back-door attempt by the drafters of the House Report to redefine the terms of the REA in a manner not agreed to by the Senate.
308. H.R. REP. No. 99-422, at 5 (1985). Technical and typographical errors in the Report were corrected at 132 CONG. REC. E1434 (1986). This is the report on H.R. 3550, whose language amending 28 U.S.C. § 2072, apart from language with respect to the supersession clause (not at issue here) was identical to that ultimately passed in 1988. The Report on the 1988 House bill (which was the source of, and identical to, the Senate bill) incorporated by reference House Report number 99-422. See H.R. REP. No. 100-889 at 29 (1988). For a discussion of the legislative history of the 1988 amendments to the Rules Enabling Act, see Burbank, supra note 4, at 1030-36. See also Moore, supra note 38, at 1043-49. Both Professors Burbank and Moore conclude that the House Report is the best evidence of congressional intent with the Act. See also Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2302-03 (1998). As discussed in note 256 below, however, the Senate Report provides contradictory evidence of congressional intent, which could make the House Report seem, at least to those hostile to the use of legislative history, a back-door attempt by the drafters of the House Report to redefine the terms of the REA in a manner not agreed to by the Senate.
309. H.R. REP. No. 99-422, at 5 (1985). Technical and typographical errors in the Report were corrected at 132 CONG. REC. E1434 (1986). This is the report on H.R. 3550, whose language amending 28 U.S.C. § 2072, apart from language with respect to the supersession clause (not at issue here) was identical to that ultimately passed in 1988. The Report on the 1988 House bill (which was the source of, and identical to, the Senate bill) incorporated by reference House Report number 99-422. See H.R. REP. No. 100-889 at 29 (1988). For a discussion of the legislative history of the 1988 amendments to the Rules Enabling Act, see Burbank, supra note 4, at 1030-36. See also Moore, supra note 38, at 1043-49. Both Professors Burbank and Moore conclude that the House Report is the best evidence of congressional intent with the Act. See also Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2302-03 (1998). As discussed in note 256 below, however, the Senate Report provides contradictory evidence of congressional intent, which could make the House Report seem, at least to those hostile to the use of legislative history, a back-door attempt by the drafters of the House Report to redefine the terms of the REA in a manner not agreed to by the Senate.
310. H.R. REP. No. 99-422, at 5 (1985). Technical and typographical errors in the Report were corrected at 132 CONG. REC. E1434 (1986). This is the report on H.R. 3550, whose language amending 28 U.S.C. § 2072, apart from language with respect to the supersession clause (not at issue here) was identical to that ultimately passed in 1988. The Report on the 1988 House bill (which was the source of, and identical to, the Senate bill) incorporated by reference House Report number 99-422. See H.R. REP. No. 100-889 at 29 (1988). For a discussion of the legislative history of the 1988 amendments to the Rules Enabling Act, see Burbank, supra note 4, at 1030-36. See also Moore, supra note 38, at 1043-49. Both Professors Burbank and Moore conclude that the House Report is the best evidence of congressional intent with the Act. See also Note, The Rules Enabling Act and the Limits of Rule 23, 111 HARV. L. REV. 2294, 2302-03 (1998). As discussed in note 256 below, however, the Senate Report provides contradictory evidence of congressional intent, which could make the House Report seem, at least to those hostile to the use of legislative history, a back-door attempt by the drafters of the House Report to redefine the terms of the REA in a manner not agreed to by the Senate.
311. H.R. REP. No. 99-422, at 12 (1985).
312. Id. at 20.
313. See id. at 22. Professor Burbank appeared as an invited witness at hearings and provided other assistance to the House Judiciary Committee in the development of the 1988 revisions to the Rules Enabling Act. See id. at 7, 18; see also Burbank, supra note 4, at 1012.
314. H.R. REP. 99-422 at 20.
315. Id.
316. Id. at 20-21.
317. Id. at 21.
318. Id.
319. See id.
320. See id.
321. Id.
322. Sibbach v. Wilson & Co., 312 U.S. 1, 13-16 (1941).
323. H.R. REP. 99-422, at 21-22 (1985) (emphasis added).
324. See Moore, supra note 38, at 1049. The Senate Report accompanying the bill stated that 2072 (a) "consolidates but carries forward current law" and that 2072 (b) "also carries forward the scope of current law." 134 CONG. REC. 31056 (1988). This language could be read as referring to judicial interpretations, as well as the language of the Act itself. However, because the prior judicial interpretation was unsettled, application of the "reenactment rule," or the presumption that Congress intended to incorporate judicial interpretation, is inappropriate. Compare Fogerty v. Fantasy, Inc., 510 U.S. 517, 527-35 (1994) (rejecting as inappropriate the application of the reenactment rule), with Lorillard, Inc. v. Pons, 434 U.S. 575 (1978). And because of the internal contradiction in the legislative history, it could be argued that the committee report is of little help in interpreting the 1988 Act. Professor Burbank, who provided assistance to (and, apparently, heavily influenced) the House Committee in the preparation of its report, disagrees, arguing that the Senate report should be given little weight, because "unlike both the 1985 and 1988 House Judiciary Committee reports, which were available to members of the House (and Senate) prior to the sessions at which action was taken, this analysis was first available to the members of the Senate during the late evening session when the Senate bill was discussed and approved." Burbank, supra note 4, at 1034-35 (citations omitted).
325. According to the canon of statutory construction, expressio unius, expression of one thing suggests exclusion of others. See, e.g., EEOC v. Arabian Oil Co., 499 U.S. 244 (1991); Chan v. Korean Airlines, 490 U.S. 122, 132-33 (1989). Professor Gilson makes a similar point in the context of discussing the desirability of specific rules to deter socially undesirable behavior: "The more specific the prohibition, the more likely it is that undesirable conduct, which was intended to be prohibited and which would have been covered by a more general prohibition, will not be barred." Ronald Gilson, A Structural Approach to Corporations: The Case Against Defensive Tactics in Tender Offers, 33 STAN. L. REV. 819, 883 (1981) (citations omitted).
326. H.R. No. REP. 99-122, at 22 (1985).
327. Justice Scalia has been critical of the use of legislative history in interpreting statutes, preferring a "textualist" or "plain meaning" approach. Although a majority of the Court has expressed its disagreement with Justice Scalia's rejection of legislative history, see Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991), his influence has led to decreased reliance by the Court on legislative history. See Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351 (1994). But even Justice Scalia has looked to legislative history in a difficult case. See Green v. Bock Laundry, 490 U.S. 504, 527 (1989) (Scalia, J., concurring); see also JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 174-75 (Robert A. Katzmann ed., 1988) (quoting justice Scalia as saying "I play the game like everybody else . . . I'm in a system which has accepted rules and legislative history is used . . . . You read my opinions, I sin with the rest of them"); see also Burbank, supra note 4. For a discussion of the use of legislative history in the interpretation of statutes, and a collection of citations to major articles on the debate, see WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY, Ch. 8, and 751 n.3 (2d ed. 1995).
328. Justice Scalia has been critical of the use of legislative history in interpreting statutes, preferring a "textualist" or "plain meaning" approach. Although a majority of the Court has expressed its disagreement with Justice Scalia's rejection of legislative history, see Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991), his influence has led to decreased reliance by the Court on legislative history. See Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351 (1994). But even Justice Scalia has looked to legislative history in a difficult case. See Green v. Bock Laundry, 490 U.S. 504, 527 (1989) (Scalia, J., concurring); see also JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 174-75 (Robert A. Katzmann ed., 1988) (quoting justice Scalia as saying "I play the game like everybody else . . . I'm in a system which has accepted rules and legislative history is used . . . . You read my opinions, I sin with the rest of them"); see also Burbank, supra note 4. For a discussion of the use of legislative history in the interpretation of statutes, and a collection of citations to major articles on the debate, see WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY, Ch. 8, and 751 n.3 (2d ed. 1995).
329. Justice Scalia has been critical of the use of legislative history in interpreting statutes, preferring a "textualist" or "plain meaning" approach. Although a majority of the Court has expressed its disagreement with Justice Scalia's rejection of legislative history, see Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991), his influence has led to decreased reliance by the Court on legislative history. See Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351 (1994). But even Justice Scalia has looked to legislative history in a difficult case. See Green v. Bock Laundry, 490 U.S. 504, 527 (1989) (Scalia, J., concurring); see also JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 174-75 (Robert A. Katzmann ed., 1988) (quoting justice Scalia as saying "I play the game like everybody else . . . I'm in a system which has accepted rules and legislative history is used . . . . You read my opinions, I sin with the rest of them"); see also Burbank, supra note 4. For a discussion of the use of legislative history in the interpretation of statutes, and a collection of citations to major articles on the debate, see WILLIAM N. ESKRIDGE, JR. & PHILIP P. FRICKEY, CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY, Ch. 8, and 751 n.3 (2d ed. 1995).
330. 496 U.S. 384 (1990).
331. Id. at 391 (emphasis added) (Justice Stevens dissented with respect to one part of the opinion).
332. Rule 11 was amended in 1993, partly in response to, and in order to overturn, the ruling in Cooter & Gell. After 1993 Rule 11, sanctions are no longer mandatory, Rule 11(c), and monetary sanctions cannot be imposed on the court's initiative after the case has been dismissed or settled. See Rule 11(c)(2)(B). In addition, by virtue of the "safe harbor" provision of 11(c)(1)(A), no motion for sanctions under Rule 11 can be filed or presented to the court if a pleading is withdrawn within 21 days of the service of a formal motion on the offending party. See generally Kelleher, supra note 48, at 70-76.
333. Cooter, 496 U.S. at 410, 412.
334. Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S. 533 (1991). Professor Burbank has stated that the Business Guides case was the first time since Sibbach that the Supreme Court was willing "to take at least somewhat seriously an Enabling Act challenge to a Federal Rule . . . ." Burbank, supra note 64, at 843.
335. For an argument that the plain meaning approach to Rules interpretation is "misguided, unwarranted, and inappropriate," see Moore, supra note 38, at 1085.
336. Justice Scalia also joined Justice Kennedy in dissenting from the majority opinion, but did not join in that portion of Justice Kennedy's dissenting opinion in which he discussed the Rules Enabling Act.
337. Business Guides, 498 U.S. at 565.
338. Id.
339. Id.
340. 446 U.S. 740 (1980). The Court noted: "This is not to suggest that the Federal Rules of Civil Procedure are to be narrowly construed in order to avoid a 'direct collision' with state law. The Federal Rules should be given their plain meaning. If a direct collision with state law arises from that plain meaning, then the analysis developed in Hanna v. Plumer applies." Id. at 750 n.9.
341. 500 U.S. 90 (1991).
342. Id. at 96.
343. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996).
344. Id. at 428 n.7. See also id. at 441 n.1 ("[T]here is no conceivable conflict between Federal Rule of Civil Procedure 59 and the application of the New York damages limit . . . .") (Stevens, J., dissenting).
345. Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2244 (1997).
346. Congressional intent is, of course, a fiction. A diverse body such as Congress cannot be said to have a single intent; each member may have his or her own motivation for acting. But the concept of a legislature's institutional intent is commonly understood (although hotly debated), and it is in that sense that it is used in this Article. For an overview of some of the extensive commentary on the concept of legislative intent, see generally ESKRIDGE & FRICKEY supra note 258, at 84-87; 524-31; 733-832.
347. See, e.g., Business Guides, Inc. v. Chromatic Communications Enters. Inc., 498 U.S. 533 (1991) (Kennedy, J., dissenting).
348. See Whitten, supra note 70, at 56-57.
349. 28 U.S.C. § 1391 provides a general venue rule. In addition, there are special venue provisions. See, e.g., 28 U.S.C. § 1396 (internal revenue tax cases); 28 U.S.C. § 1397 (interpleader); 28 U.S.C. § 1401 (stockholders' derivative action suits); 28 U.S.C. § 1400 (patent and copyright cases).
350. A subsequently-promulgated Rule will not supersede the PSLRA, despite the supercession clause, as any rule purporting to govern pleading requirements in securities cases would impermissibly affect what Congress has clearly indicated to be a substantive right and thus not be a valid Rule.
351. Professor Landers has suggested that the test for whether a matter involves a substantive right is whether it is "the subject of widespread public controversy, as differentiated from controversy among lawyers." Jonathan M. Landers, Of Legalized Blackmail and Legalized Theft: Consumer Class Actions and the Substance-Procedure Dilemma, 47 S. CAL. L. REV. 842, 857 (1974). Professor Carrington makes a similar argument. In commenting on extant proposals to amend Rule 23 (b) (4) to permit certification of classes for settlement purposes only, he commented: Proposed paragraph (b)(4) is politically controversial, supported by some factions and opposed by others. That is solid proof of its substantivity in the pragmatic sense. When large political forces are marshaled in support of or in opposition to a proposed amendment to a rule . . . [it generally is] because the proposal has important effects extrinsic to the process by which the courts decide cases or controversies in accordance with the law. Carrington & Apanovich., supra note 4, at 482-83. In the next paragraph, however, he states that even though the 1993 revisions to Rules 30 and 26 were opposed by court reporters and the bar, respectively, "those reforms were incontestably procedural in character, having no effect on right or duties bearing on relations and events outside federal judicial proceedings." Id. Thus, his "politically controversial" test has no meaning, for, under the test, a matter is substantive when it is the subject of political controversy, unless, it is not. Professor Goldberg has criticized the "widespread controversy" test for causing the meaning of substantive rights, and the permissibility of a particular rule, to vary over time as public attention is focused on the issue. See Goldberg, supra note 163, at 437 n.244. While it may not be desirable to have the meaning of substantive rights vary over time, that will necessarily be the effect of increasing Congressional regulation in areas that were previously seen as procedural. But the relevant intent is that of Congress, not lobbyists. Thus, if Congress chooses to leave discovery issues to the Court, the extent to which interest groups lobby for congressional regulation is irrelevant. Certain matters, like discovery, are obviously and presumptively procedural, and within the delegation of the REA, unless Congress removes them from the Court's authority.
352. See supra text accompanying notes 47-48.
353. Recently proposed amendments would eliminate most of the authorizations for local deviations from the 1993 scheme of disclosure and discovery. See, e.g., Proposed Amendments to Rule 26(a)(1), (d), (f), available at 〈http:www.uscourts.gov〉.
354. 28 U.S.C. § 2074(b) (1994) ("Any . . . rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.").
355. See Whitien, supra note 70.
356. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-49 (1936) (Brandeis, J., concurring). See generally Lisa A. Kloppenberg, Avoiding Constitutional Questions, 35 B.C. L. REV. 1003 (1994).
357. See, e.g., United States v. IBM, 517 U.S. 843, 868 (1996) ("In interpreting statutes . . . we have long observed '[t]he elementary rule . . . that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality . . . .' This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The Courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp powers constitutionally forbidden it.") (citations omitted).
358. Cf. Guaranty Trust Co. v. York, 326 U.S. 99 (1945) (finding that whether a statute of limitations was deemed "procedural" or "substantive" by state courts was irrelevant to the determination of whether a federal court was required to apply it under the Erie doctrine, as that determination was made as a matter of federal law).
359. Cf. Younger v. Harris, 401 U.S. 37 (1971).
360. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 n.7 (1996).
361. Hanna v. Plumer, 380 U.S. 460 (1965).
362. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).
363. See generally HART & WESCHLER, supra note 99, at 696-703 (arguing also, inter alia, that the result in Klaxon is not constitutionally mandated, and that the Court in Klaxon could have applied a federal choice of law rule).
364. Cf. Boggs v. Boggs, 117 S. Ct. 1754 (1997).
365. See Mishkin, supra note 111, at 1685.
366. See supra note 78 and accompanying text.
367. In this respect, the Court errs in giving the desire for uniformity a determinative effect in the Sibbach and Burlington cases. See supra text accompanying notes 212-19 and 226-27.
368. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 428 n.7 (1996) (citing Walker).
369. See Kamen v. Kemper Fin. Serv., 500 U.S. 90 (1991) (reaching this result even though the complaint was a derivative suit under the Federal Investment Company Act). In an earlier case, the Court left open the issue of whether the contemporaneous ownership requirement of Rule 23.1 can preempt a contrary state rule. See Bangor Punta Operations, Inc. v. Bangor & Aroostook R.R. Co., 417 U.S. 703, 708 n.4 (1974); see also Paul P. Harbrecht, The Contemporaneous Ownership Rule in Shareholders' Derivative Suits, 25 U.C.L.A. L. REV. 1041 (1978).
370. See Pound, supra note 31.
371. The term "trans-substantive" appears to have been coined in Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE L. J. 718, 732-40 (1975) (discussing the pros and cons of a single set of rules to govern all kinds of proceedings).
372. Carrington, supra note 177, at 303.
373. See, e.g., Marcus, supra note 29; Judith Resnik, The Domain of the Courts, 137 U. PA. L. REV. 2219 (1989).
374. Carrington, supra note 29, at 2079; see also Carrington, supra note 177, at 303-04 ("The costs of the differentiated procedure of England were well known to those who drafted the Rules Enabling Act and the 1938 Rules."). But see Burbank, supra note 4, at 1041 (arguing that there is no evidence in the legislative history to support Carrington's contention).
375. See Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence and Emerging Procedural Patterns, 137 U. PA. L. REV. 1999, 2005-06 (1989).
376. H.R. REP. No. 99-422, at 22 (1985).
377. See Mississippi Publ'g Corp. v. Murphree, 326 U.S. 438 (1946).
378. The Court can be faulted, also, for stretching the concept of "incidental" impact so far as to render it a meaningless limit, in the Sibbach and Burlington cases. See supra text accompanying notes 212-19 and 226-27.
379. 28 U.S.C. § 2072(b) (1994).
380. See H.R. REP No. 99-422 at 21 ("[T]he bill does not confer power on the Supreme Court to promulgate rules regarding matters, such as limitations and preclusion, that necessarily and obviously define or limit rights under substantive law."); see also Burbank, supra note 4, at 1033; accord Rowe, supra note 4 at 980-81. Indeed, for similar reasons, such matters may be beyond the scope of Congressional authority to regulate pursuant to its Article III power. Matters such as statutes of limitations may be too substantive to be preempted by Congress in diversity matters pursuant to a purely procedural statute. See supra text accompanying notes 137-51; see also Carrington, supra note 4, at 483; 19 WRIGHT ET AL., supra note 72, §4509, n.17, at 266 (expressing doubt as to the extent of Congressional power to determine limitations periods in diversity actions).
381. See Regan v. Merchant Transfer & Warehouse Co., 337 U.S. 530 (1949); Walker v. Armco Steel Corp., 446 U.S. 740, 749-51 (1980). Rule 15(c), permitting the relation back of amendments to complaints, does impact on limitations periods and, for that reason, its validity has been questioned by several commentators. See, e.g., Burbank, supra note 4; C. Douglas Floyd, Erie Awry: A Comment on Gasperini v. Center for Humanities, Inc., 1997 B.Y.U. L. REV. 267, 287 n.102. But see 19 WRIGHT ET AL., supra note 72, at 272-77 (concluding that Rule 15(c) is valid because its impact on the substantive rights protected by state limitations periods is relatively minor, and because Rule 15(c) is a significant part of a comprehensive, uniform and rational system of federal procedure.). Cf. Rowe, supra note 4, at 1016: The conflict between Federal Rule of Civil Procedure 15 (c) on relation back and a more liberal state provision that led to the First Circuit's decision in Marshall v. Mulrenin, 508 F.2d 39 (1st Cir. 1974), to regard the state rule as substantive and follow it, has been eliminated by the 1991 amendment permitting relation back when it is permitted by the law that provides the statute of limitations applicable to the action.' Fed. R. Civ. P. 15(c)(1). Professor Rowe, however, ignores the conflict that arises when the federal rule is more lenient than the state rule in permitting relation back.
382. See Mississippi Publ'g Corp. v. Murphee, 326 U.S. 438, 445 (1946); cf. Hanna v. Plumer, 380 U.S. 460, 473 (1965).
383. Professor Ely argues that where state legislation has been enacted for one or more nonprocedural purposes, that is, for some purpose not having to do with the fairness or efficiency of the litigation process, it grants a substantive right within the meaning of the Rules Enabling Act, and cannot be overridden by a Federal Rule. See Ely, supra note 1, at 724-25 (citation omitted). Several other commentators have argued that a Federal Rule cannot supplant a "substantive" state law. See, e.g., Whitten, supra note 194; see also Rowe, supra note 4. This approach is criticized by Professor Burbank as confining the Act to the protection of existing policy choices and, more importantly, to the protection of state law. It presents the additional problem of engaging the federal courts in the difficult and highly manipulable business of ascertaining the policies animating particular rules of state law . . . . Burbank, supra note 4, at 1017-18 (1989) (citations omitted).
384. Cf. Burbank, supra note 32, at 1169 ("The concern for substantive rights expressed in the Act . . . apparently extends to constitutional interests that are procedural in the sense that they are implicated only in the context of litigation."). He suggests, however, that only those interests specifically enumerated in the Constitution, such as the right to a jury, are constitutional interests relevant under the Act, so that the "entire [rulemaking] enterprise will not founder in the lap of the due process clause." Id. at 1171. The extent to which matters that implicate due process concerns will be taken up in a subsequent article concerning the validity of Rule 4.
385. Cf. Byrd v. Blue Ridge Elec. Coop., 356 U.S. 525, 537 (1958) (allocation of function between judge and jury is "influenced, if not controlled by Seventh amendment"). In Byrd, the Court did not decide whether the Constitution dictated the result, but proceeded as though the allocation of functions between judge and jury was a matter of procedural common law. Out of concern that the 1963 amendments to Rule 50 encroached on the right to trial by jury, and were too substantive to be promulgated by the Court, Justices Black and Douglas dissented from their transmission to Congress. See Order of January 21, 1963, 374 U.S. 865 (Black & Douglas, JJ., dissenting).
386. Cf. Henry P. Monaghan, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1 (1975).
387. The Committee, of course, has an interest in having Rules upheld as valid, so a statement by the Committee as to the impact of the Rule will not be determinative. Cf. Laurens Walker, Writings on the Margin of American Law: Committee Notes, Comments and Commentary, 29 GA. L. REV. 993 (1995) (arguing that Committee notes generally should be given little weight in interpreting Federal Rules).
388. See Act of June 19, 1934, Pub. L. No. 73-415, Stat. 1064 (1988) (reproduced at supra note 179).
389. See, e.g., 18 U.S.C. § 3281 (1994) (no limitations on prosecutions for capital offenses).
390. This is not to say that the courts do not have inherent authority over limitations periods, in the absence of any congressional guidance. Indeed, the doctrine of laches in equity cases was an exercise of the court's inherent authority in the area. The federal interest is not sufficiently strong, however, to permit the federal judge- made law to override state law of limitations. Cf. Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
391. See H.R. REP. No. 99-122, at 22 (1985)