Redeeming the missed opportunities of Shady Grove

University of Pennsylvania Law Review

Volumn 159, Issue 1, 2010, Pages 17-76

  Burbank, Stephen B ^a   Wolff, Tobias Barrington ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 79551700093     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (386)

1. EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION 257 (2000).
2. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring).
3. 28 U.S.C. § § 2072-2077 (2006).
4. See, e.g., Guar. Trust Co. v. York, 326 U.S. 99, 101-12 (1945) (identifying the jurisdictional policies that inform the Erie doctrine's nonconstitutional dimensions and clarifying the role that those policies play in limiting a diversity court's power to craft judge-made procedure);
5. PURCELL, supra note 1, at 141-45, 149-55, 246-55 (discussing Justice Brandeis's deep concern, which contributed to his opinion in Erie and is reflected in Guaranty Trust, about the waste and unfairness that corporate defendants created by jurisdictional manipulation designed to wear out their opponents and to take advantage of general federal common law).
6. See Stephen B. Burbank, The Rules Enabling Ad of 1934, 130 U. PA. L. REV. 1015, 1106-12 (1982) (arguing that the Rules Enabling Act's procedure/substance dichotomy was not designed primarily to safeguard state law, but rather to limit the prospective lawmaking power the Act granted to the Supreme Court and thereby maintain the separation of powers).
7. See 28 U.S.C. §2072(b) (stating that procedural rules "shall not abridge, enlarge or modify any substantive right").
8. 130S. Ct. 1431 (2010).
9. See N.Y. C.P.L.R. 901(b) (McKinney 2006) ("Unless a statute .. . specifically authorizes the recovery [of a penalty or statutory damages] in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.").
10. See FED. R. Civ. P. 23.
11. See Shady Graue, 130 S. Ct. at 1437-42 (determining that Rule 23 was in conflict with section 901 (b) and thus that, if valid, Rule 23 must govern in federal diversity suits).
12. See id. at 1442-44 (Scalia, J., for himself, Roberts, C.J., Thomas, J., and Sotomayor, J.) (explaining that Rule 23 "merely enables a federal court to adjudicate claims of multiple parties at once . .. [and that] like traditional joinder, it leaves the parties' legal rights and duties intact and the rules of decision unchanged").
13. See, e.g., Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enaliling Act, 1989 DUKE LJ. 1012 [hereinafter Burbank, Hold the Corks] ;
14. Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733 (1986) [hereinafter Burbank, Interjurisdictional Preclusion];
15. Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law, 63 NOTRE DAME L. REV. 693 (1988) [hereinafter Burbank, Rules and Discretion];
16. Burbank, supra note 5.
17. Justice Powell foreshadowed some aspects of our analysis in his incisive dissent in the Roper case: The Court argues that the result will be to deny compensation to putative class members and jeopardize the enforcement of certain legal rights by "private [attorneys] general." The practical argument is not without force. But predicating a judgment on these concerns amounts to judicial policymaking with respect to the adequacy of compensation and enforcement available for particular substantive claims. Such a judgment ordinarily is best left to Congress. At the very least, the result should be consistent with the substantive law giving rise to the claim. Today, however, the Court never pauses to consider the law of usury. Since Mississippi law condemns the aggregation of usury claims, the Court's concern for compensation of putative class members in this case is at best misplaced and at worst inconsistent with the command of the Rules Enabling Act.
18. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 354-55 (1980) (Powell, J., dissenting) (footnotes and citations omitted).
19. See Shady Grove, 130 S. Ct. at 1436 (majority opinion).
20. Id.
21. Id.
22. Id.
23. Id. at 1436-37;
24. see also N.Y. INS. LAW § 5106(a) (McKinney 2009) ("All overdue payments shall bear interest at the rate of two percent per month.").
25. See 28 U.S.C. § 1332(d) (2006).
26. Shady Grove, 130 S. Ct. at 1436-37.
27. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 466 F. Supp. 2d 467, 475-76 (E.D.N.Y. 2006).
28. See Shady Grove, 130 S. Ct. at 1436-37.
29. See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1549 (2008) (illustrating through an appendix state adoptions of Rule 23 as amended in 1966).
30. N.Y. C.P.L.R. 901(a) (McKinney 2006).
31. N.Y. C.P.L.R. 901(b) (McKinney 2006).
32. See Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 466 F. Supp. 2d 467, 471-73 (E.D.N.Y. 2006) (holding that section 901(b) barred a class action in this case), affd, 549 F.3d 137,145 (2d Cir. 2008).
33. See, e.g., Leider v. Ralfe, 387 F. Supp. 2d 283, 289-90 (S.D.N.Y. 2005) (holding that there was "no collision" between Rule 23 and section 901(b) because Rule 23 merely establishes procedure for pursuing class actions, while section 901 (b) prohibits that mechanism for certain types of litigation);
34. Ansoumana v. Gristede's Operating Corp., 201 F.R.D 81, 88 (S.D.N.Y. 2001) (noting that any plaintiffs wanting to preserve their right to recover liquidated damages would have to opt out of the class because of section 901(b));
35. Dornberger v. Metro. Life Ins. Co., 182 F.R.D. 72, 84 (S.D.N.Y. 1998) (certifying a class under Rule 23 but severing a claim that arose under a statute providing for a specific penalty, holding that "[w]hereas this Court is bound by Fed.R.Civ.P. 23 in this action, the strictures of New York's CPLR §901 (b) do not contravene any federal rule").
36. But see Wesley v. John Mullins & Sons, Inc., 444 F. Supp. 117, 119-20 (E.D.N.Y. 1978) (assuming in dictum that statutory penalties would be recoverable in a class action but dismissing the state law claim on other grounds).
37. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1438-42 (2010).
38. Id. at 1437
39. (quoting FED. R. CIV. P. 23).
40. Id.
41. N.Y. C.P.L.R. 901(b) (McKinney 2006) (emphasis added);
42. see also Shady Grove, 130 S. Ct. at 1438-39 (emphasizing the parallel language in the two provisions).
43. See Hanna v. Plumer, 380 U.S. 460, 471 (1965) ("[T]he court has been instructed to apply the Federal Rule, and can refuse to do so only if the Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.").
44. Shady Grove, 130 S. Ct. at 1443 (Scalia, J., for himself, Roberts, C.J., Thomas, J., and Sotomayor, J.).
45. N.Y. C.P.L.R. 901, cmt. C901:11
46. (quoting Ratner v. Chem. Bank of N.Y., 54 F.R.D. 412, 416 (S.D.N.Y. 1972)).
47. See Shady Grove, 130 S. Ct. at 1444.
48. 312 U.S. 1 (1941).
49. See Shady Grove, 130 S. Ct. at 1448-49 (Stevens, J., concurring in part and concurring in the judgment).
50. See id. at 1465-69 (Ginsburg, J., dissenting).
51. See id. at 1456-57 (Stevens, J., concurring in part and concurring in the judgment) (discussing Justice Ginsburg's dissent).
52. We have employed this metaphor in the past: In more than one part of the opinion in Ortiz, as in Amchem, the Court expressed solicitude for the limitations on court rulemaking imposed by the Rules Enabling Act. Consistently with its previous misreadings of that statute, however, the Court missed the forest of separation of powers for the trees of federalism.
53. Stephen B. Burbank, The Class Action in American Securities Regulation, 4 ZEITSCHRIFT FÜR ZIVILPROZEß INTERNATIONAL 321, 335 (1999) (footnotes omitted).
54. 304 U.S. 64(1938).
55. 380 U.S. 460 (1965).
56. 312 U.S. 1 (1941).
57. See id. at 9-10 (contrasting Congress's power to regulate "procedure of federal courts" with its lack of authority to declare or abolish "substantive state law");
58. Burbank, supra note 5, at 1029-30 n.60 ("The link between the constitutional and statutory allocation of federal and state power and the scope of the delegation in the Rules Enabling Act is made clear in the paragraph [in Sibbach] following that suggesting limits on congressional power . .. .").
59. See Sibbach, 312 U.S. at 19 (Frankfurter, J., dissenting) ("But Rule 35 applies to all civil litigation in the federal courts, and thus concerns the enforcement of federal rights and not merely of state law in the federal courts.").
60. See id. at 18 ("So far as national law is concerned, a drastic change in public policy in a matter deeply touching the sensibilities of people or even their prejudices as to privacy, ought not to be inferred from a general authorization to formulate rules for the more uniform and effective dispatch of business on the civil side of the federal courts.").
61. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938),
62. overruling Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).
63. See AM. LAW INST., A STUDY OF THE BUSINESS OF THE FEDERAL COURTS pt. 2, at 53-57 (1934) (providing detailed statistics on the number of diversity and federal question cases that were terminated in federal district courts between June 1929 and June 1930);
64. DEP'T OF JUSTICIE, ANNUAL REPORT OF THE ATTORNEY GENERAL OF THE UNITED STATES FOR THE FISCAL YEAR 1936, exhibit 2, at 162, 177-79 (displaying the assortment and number of federal question cases that were tried in district courts in fiscal year 1936);
65. Stephen B. Burbank, Vanishing Triali and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 619 (2004) (explaining that the original Advisory Committee for the Federal Rules was aware that the "litigation landscape" was not "dominated by simple diversity cases");
66. cf. Burbank, supra note 5, at 1109-10 (discussing the lack of concern for preservation of state law when the Rules Enabling Act was formulated and passed).
67. See Burbank, supra note 5, at 1050-98. The research that explored this legislative history also unearthed a 1923 letter from the author of the relevant section of the bill, Senator Albert Cummins, to Chief Justice Taft in which Cummins requested that Taft "particularly note the sentence reading: 'Said rules shall neither abridge, enlarge, nor modify the substantive rights of any litigant.'" Letter from Sen. Albert B. Cummins to Hon. William H. Taft, reprinted in Burbank, supra note 5, at 1073 n.260. Cummins continued,
68. I hope you will not think that I overlooked the obvious principle that Congress could not if it wanted to, confer upon the Supreme Court, legislative power. I have suggested this sentence solely to quiet the apprehensions of those who may be opposed to any measure of this sort.
69. Id.
70. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) ("The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign .. ..");
71. Charles E. Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 YALE LJ. 267 (1946).
72. For evidence of the "immediate impact of Erie in muddying the waters," see Burbank, supra note 5, at 1110-11 n.435.
73. See Burbank, supra note 5, at 1180 (noting that Mrs. Sibbach's attorney "drew the Court's attention to the support for her functional argument, and some of its implementing abstractions, in . .. the 1926 Senate Report").
74. 28 U.S.C. §1652 (2006).
75. See Sibbach v. Wilson & Co., 312 U.S. 1, 9-10 (1941); sources cited supra note 44 (describing the Court's linking of the Act to principles of federalism).
76. See Owen J. Roberts, Trial Procedure-Past, Present and Future, 15 ABA. J. 667, 668 (1929) (arguing that the regulation of procedure should not be left in the care of the legislature but rather should "be in the hands of those who know best about it and who ... can make rules to meet situations as they arise in the actual practice of law"),
77. quoted in Burbank, supra note 5, at 1031 n.65;
78. see also Sibbach, 312 U.S. at 14 ("[T]he new policy envisaged in the enabling act of 1934 was that the whole field of court procedure be regulated in the interest of speedy, fair and exact determination of the truth.").
79. See Burbank, supra note 5, at 1055-61, 1087-88, 1125-27 (discussing the limitations on court rulemaking emphasized by the New York Reports and the extent to which House and Senate committees relied on them prior to 1934). That those primarily responsible for explaining the bills that preceded the Enabling Act drew heavily on these New York sources is additional evidence that federalism was not their primary concern. It also imparts an additional layer of irony to the decision in Shady Grove.
80. See id. at 1028-31.
81. The references by the Court to "rights conferred by law to be protected and enforced in accordance with the adjective law of judicial procedure" and to procedure as "the judicial process for enforcing rights and duties recognized by substantive law" strongly suggested that the Rules Enabling Act divided the legal universe into two parts: rules of decision found within areas, such as contracts, tort, and property, that would be deemed purely substantive by anyone's definition, and all other rules, which would be considered procedural, even if they had some effect on the enforcement of pure substantive rules.
82. Ralph U. Whitten, Erie and the Federal Rules: A Review and Reappraisal After Burlington Northern Railroad v. Woods, 21 CREIGHTON L. REV. 1, 6-7 (1987).
83. Justice Roberts was joined by Chief Justice Hughes and Justices McReynolds, Stone, and Reed.
84. See Sibbach, 312 U.S. at 6, 19. For recent work challenging the traditional account of judicial behavior that sees a clear divide between formalism and realism,
85. see BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING (2010).
86. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1445-46 (2010) (citations omitted) (Scalia, J., for himself, Roberts, C.J., and Thomas, J.).
87. In reality, the concurrence seeks not to apply Sibbach, but to overrule it (or, what is the same, to rewrite it). [Sibbach'a] approach, the concurrence insists, gives short shrift to the statutory text forbidding the Federal Rules from "abridgfing], enlarging], or modify[ing] any substantive right." There is something to that. It is possible to understand how it can be determined whether a Federal Rule "enlarges" substantive rights without consulting State law: If the Rule creates a substantive right, even one that duplicates some state-created rights, it establishes a new federal right. But it is hard to understand how it can be determined whether a Federal Rule "abridges" or "modifies" substantive rights without knowing what state-created rights would obtain if the Federal Rule did not exist. Sibbach's exclusive focus on the challenged Federal Rule driven by the very real concern that Federal Rules which vary from State to State would be chaos-is hard to square with §2072 (b)'s terms.
88. Id.
89. 318 U.S. 109, 117 (1943) ("Rule 8(c) covers only the manner of pleading. The question of the burden of establishing contributory negligence is a question of local law which federal courts in diversity of citizenship cases must apply." (citation omitted) ).
90. See Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 533-34 (1949) ("We cannot give [this suit] longer life in the federal court than it would have had in the state court without adding something to the cause of action.");
91. Whitten, supra note 56, at 9-10 ("One cannot read the Ragan opinion without drawing the conclusion that the Court viewed the case as one in which a Federal Rule conflicted with state law, and in which Erie thus required application of the state provision." (footnote omitted) ).
92. See Burbank, supra note 5, at 1032 (stating that cases interpreting the Rules in relation to Erie "raised fears for the integrity of the Federal Rules of Civil Procedure" (footnote omitted)).
93. See 356 U.S. 525, 534-40 (1958) (explaining that because the state rule was not "intended to be bound up with the definition of the rights and obligations of the parties," and because there was a strong federal policy concerning the allocation of power between judge and jury, the "policy of uniform enforcement of state-created rights and obligations" did not require application of the state rule). As we discuss below, Byrd'a "affirmative countervailing considerations," id. at 537, if properly disciplined, can inform a more robust form of federal common law than has developed in the wake of Hannu. The Byrd Court did not discipline that concept, perhaps because the influence of the Seventh Amendment seemed so clear and also because the Court had not yet grasped Hanna'a central insight about the relevance of different sources of federal lawmaking power.
94. See id. at 537-38 & n.12 (citing Sibbach for the proposition that "[t]he policy of uniform enforcement of state-created rights and obligations cannot in every case exact compliance with a state rule").
95. See Hanna v. Plumer, 380 U.S. 460, 463-74 (1965) (clarifying the intersection between the Federal Rules and state laws);
96. see also Whitten, supra note 56, at 12 ("A more complete salvation for the Rules had to await the Court's decision in Hanna....").
97. See John Hart Ely, The Irrepressible Myth of Erie, 87 HARV. L. REV. 693, 698-99 (1974)
98. ("By essentially obliterating the Enabling Act in Sibbach v. Wilson & Co. in 1941, [the Court] created a need for limits on the Rules, a need it subsequently filled not by reconsidering Sibbach, but rather by an undefended application of the Erie line of precedents. ... Al that should have changed in 1965, however, with the decision in Hanna... .");
99. see also id. at 720 ("[T]he text of the opinion did little more, so far as the interpretation of the Enabling Act was concerned, than point to Sibbach.");
100. id. at 693 (noting that Professor Ely was a law clerk to Chief Justice Warren during the term that Warren authored the Court's opinion in Hanna).
101. Hanna, 380 U.S. at 476 (Harlan, J., concurring) (cautioning against "setting up the Federal Rules as a body of law inviolate"). Thus, both the majority and, to the extent that he had the Enabling Act in mind, Justice Harlan perpetuated Sibbach'n myth that federalism, rather than separation-of-powers, concerns animate the Enabling Act's limitations.
102. See Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941) ("If we were to adopt the suggested criterion of the importance of the alleged right [for the definition of "substantive rights"], we should invite endless litigation and confusion worse confounded.").
103. Id. at 13.
104. Id. at 14.
105. See, e.g., Agency Holding Corp. v. Malley-Duff & Assoes., Inc., 483 U.S. 143, 151 (1987) ("Both RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney's fees.");
106. City of Riverside v. Rivera, 477 U.S. 561, 574-80 (1986) (reasoning that Congress granted attorneys' fees under §1988 because of the public benefit created by civil rights litigation);
107. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 338-39 (1980) (positing that the incentives class actions provide to lawyers are "a natural outgrowth of the increasing reliance on the 'private attorney general' for the vindication of legal rights");
108. Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 401-03 (1968) (explaining that attorneys' fees are necessary in Title II cases to encourage those injured by racial discrimination to seek judicial relief);
109. Davis v. Werne, 673 F.2d 866, 869 (5th Cir. 1982) (clarifying that statutory damages are available under the Truth-in-Lending Act to encourage "private attorneys general" to aid in its enforcement).
110. For a rich and fascinating study of private enforcement of federal statutes that uses both econometric techniques and detailed historical analysis to test the author's hypotheses, see SEAN FARHANG, THE LITIGATION STATE: PUBLIC; REGULATION AND PRIVATE LAWSUITS IN THE U.S. (2010). As Farhang documents, although Congress's use of proplaintiff fee shifting or multiple or punitive damages (or both) to stimulate private enforcement began in the second half of the nineteenth century, it exploded in the late 1960s and the 1970s.
111. See, e.g., id. at 66 fig. 3.1. The author was kind enough to provide us with his database of federal statutes containing such enforcement tools. According to our tally, although only three federal statutes contained such provisions from 1887 to 1899, and only twenty-six did so between 1900 and 1959, ten statutes contained one or both in the period from 1964 to 1969, and sixty did so in statutes enacted between 1970 and 1979. Farhang shows that, contrary to one hypothesis, the preference for litigation over administrative enforcement has not always been confined to Democrats-indeed, Republicans were responsible for that choice in the Civil Rights Act of 1964-but that in periods of divided government, the preference for litigation consistently has reflected concern about over- or underenforcement if the administrative enforcement option were pursued (because an ideologically distant executive could subvert congressional preferences).
112. See id. at 76-78, 81, 127.
113. See Marek v. Chesny, 473 U.S. 1 (1985). The Court may have done so because Justice Brennan's dissent (joined by Justices Marshall and Blackmun) made it clear that engaging that question would require repudiation of Sibbach'n federalism account.
114. See id. at 35-38 (Brennan, J., dissenting) (arguing that the Court's interpretation of Rule 68 was inconsistent with §1988). Although taking a different view of the merits than did the dissenters, the Solicitor General's amicus brief also alerted the Court to Sibbach'n inadequacies, citing both the 1926 Senate Report and the research that established the historical support for a separation-of-powers account of the Enabling Act's limitations.
115. See Brief for the United States as Amicus Curiae Supporting Petitioners, Marek v. Chesny, 473 U.S. 1 (1985) (No. 83-1437), 1984 WL 565432, at *25 n.19 ("The legislative history of the Rules Enabling Act supports [the separation-of-powers] construction of section 2072.");
116. Stephen B. Burbank, Proposals to Amend Rule 68-Time to Abandon Ship, 19 U. MICH. J.L. REFORM 425, 433 n.42 (1986) (suggesting that if the Court had addressed the Enabling Act issue in Marek, it might have had to reformulate its interpretation of the Act).
117. See Burbank, supra note 70, at 426-30, 435-39 (discussingproposed amendments to Rule 68 and their effect on congressional policy choices);
118. see also Marek, 473 U.S. at 38-41 (Brennan, J., dissenting) (providing an overview of discussions regarding amendments to Rule 68).
119. See H. R. REP. NO. 99-422, at 13 (1985) (discussing the criticism of the 1983 and 1984 proposals to amend Rule 68);
120. Burbank, Hold the Corks, supra note 12, at 1031-33 (discussing the House Judiciary Committee Report on the bill that subsequently served as the cornerstone of the 1988 amendments);
121. Burbank, supra note 70, at 438-40 (highlighting continued debates regarding the amendment of Rule 68).
122. See Walker v. Armco Steel Corp., 446 U.S. 740, 749 n.8 (1980) ("Mr. Justice Harlan in his concurring opinion in Hanna concluded that Ragan was no longer good law.").
123. See Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1440 (2010) ("But even accepting the dissent's account of the Legislature's objective at face value, it cannot override the statute's clear text.");
124. id. at 1445 (Scalia, J., for himself, Roberts, C.J., and Thomas, J.) ("[Sibbach] leaves no room for special exemptions based on the function or purpose of a particular state rule.").
125. See Hanna v. Plumer, 380 U.S. 460, 462-63 n.1;
126. Burbank, supra note 5, at 1174 ("The court of appeals' gloss confirms what a fair reading of the statute as a whole suggests, namely that the statutory provisions in question were the functional equivalent of a tolling rule.");
127. see also Hanna, 380 U.S. at 478 (Harlan, J., concurring) ("The evident intent of the statute is to permit an executor to distribute the estate which he is administering without fear that further liabilities may be outstanding for which he could be held personally liable."). This helps to explain why Justice Harlan thought that Hanna was indistinguishable from Ragan and that the latter should be overruled.
128. See id. at 476-78.
129. See Hanna, 380 U.S. at 470 & n.12 (citing Ragan as a case in which the Court found "the scope of [a] Federal Rule was not as broad as the losing party urged" so "Erie commanded the enforcement of state law");
130. Whitten, supra note 56, at 13 (explaining that Hanna reinterpreted Ragan).
131. Walker, 446 U.S. at 749-50.
132. Id. at 750 n.9.
133. See id. at 750 n.10 ("[The Note] does not indicate .. . that Rule 3 was intended to serve as a tolling provision for statute of limitations purposes; it only suggests that the Advisory Committee thought that the Rule might have that effect."). "In fact, it is possible to infer from the published sources that the Advisory Committee intended Rule 3 to have a tolling effect, if that were within the Court's power under the Act." Burbank, supra note 5, at 1159 n.620.
134. Walker, 446 U.S. at 750.
135. Id. at 751-52.
136. See West v. Conrail, 481 U.S. 35, 39 (1987) ("[W]hen the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been 'commenced' in compliance with Rule 3 within the borrowed period."). With sleight of hand that still leaves me blinking, the Court in West supplied a different "plain meaning" to Rule 3 for federal question cases and did not consider the Enabling Act problems that interpretation might be thought to present. In particular, the Court did not consider the fact that the original Advisory Committee, in a Note which had been quoted in Walker, feared such problems in both federal question and diversity cases.
137. Burbank, Rules and Discretion, supra note 12, at 702 (footnotes omitted).
138. Cf. Walker, 446 U.S. at 751 ("In contrast to Rule 3, the Oklahoma statute is a statement of a substantive decision by that State that actual service on ... the defendant is an integral part of the several policies served by the statute of limitations.").
139. See Burbank, Rules and Discretion, supra note 12, at 703-09 (discussing this theory with reference to West). On the problem of incorporating in Federal Rules federal law that is (or was) valid under other sources of authority,
140. see Burbank, supra note 5, at 1147-57, 1165-68. West may be viewed as an example of reverse incorporation-that is, using a Federal Rule as a source for a common law rule. It fares no better from that perspective.
141. See id. at 1158-63 (examining tolling statutes and reverse incorporation).
142. 480 U.S. 1 (1987).
143. See Whitten, supra note 56, at 35-41 (discussing the questions raised by Burlington Northern, including those raised by Rule 38).
144. 28 U.S.C. §1912 (2006).
145. FED. R. APP. P. 37.
146. 28 U.S.C. §1961.
147. See Burlington Northern, 480 U.S. at 4, 7 n.5.
148. Id. at 4-5 (quoting Walker, 446 U.S. at 749-50 & n.9). The problem is that the question "whether the scope of the Federal Rule in fact is sufficiently broad to control the issue before the Court," Walker, 446 U.S. at 749-50, and the question whether there is a "direct collision," id. at 750 n.9, between the Federal Rule and state law, are not obviously the same question, even though the Walker Court seemed to conflate them.
149. Logic indicates, ... and a careful reading of the relevant passages confirms, that [the "direct collision"] language is not meant to mandate that federal law and state law be perfectly coextensive and equally applicable to the issue at hand; rather, the "direct collision" language, at least where the applicability of a federal statute is at issue, expresses the requirement that the federal statute be sufficiently broad to cover the point in dispute.
150. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 26 n.4 (1988).
151. Burlington Northern, 480 U.S. at 7.
152. Id.; cf. Stewart, 487 U.S. at 30 ("Our cases make clear that, as between these two choices in a single 'field of operation,' the instructions of Congress are supreme." (citation omitted)).
153. See Burlington Northern, 480 U.S. at 4 (purposes of state mandatory affirmance penalty);
154. id. at 7 (purposes of Rule 38).
155. See Whitten, supra note 56, at 22 (criticizing the Court's response to the fact that Alabama had a rule akin to Appellate Rule 38);
156. id. at 23 (noting that an interpretation of Appellate Rule 38 as implicitly "negating the power to impose penalties for unsuccessful appeals in cases not expressly covered by its terms" would have to distinguish Cohen);
157. id. at 23 n.117 (acknowledging that 28 U.S.C. §1912 presented a "more plausible case for implied negation," but noting that the Court did not discuss it);
158. id. at 25 ("To interpret Federal Rule 37 and 28 U.S.C. §1961 as sufficiently broad in scope to cover the ground covered by the Alabama statute, one would again have to interpret the language of the federal provisions as impliedly negating the operation of all other laws that compensate a victorious appellee for loss of use of the judgment proceeds during the course of an unsuccessful appeal."). Professor Whitten thus separately responded to elements that in combination might have yielded a persuasive opinion. Note, moreover, that his consideration of the possible influence of federal jurisdictional policy was part of an analysis of the proper result if there were no pertinent Federal Rule, was hobbled by the uncertain status of Byrd, and did not distinguish between conflict and field preemption.
159. See id. at 38-41.
160. See Burbank, Interjurisdictional Preclusion, supra note 12, at 812-17 (discussing circumstances in which state law borrowed as federal common law should be displaced and distinguishing between "cases in which state preclusion law yields to federal common law in domestic litigation because a particular state rule is found hostile to or inconsistent with a particular federal substantive policy," and "occasions when state law is at odds, not with specifically identifiable federal substantive policies, but with the sum of such policies, that is, a scheme of federal substantive rights as a whole").
161. Whitten, supra note 56, at 41.
162. 518 U.S. 415 (1996).
163. See id. at 467-68 (Scalia, J., dissenting) (quoting Burlington Northern, 480 U.S. at 5). Readers who are struck by the radical inconsistency between Justice Scalia's approach for the Court in Shady Grove and his approach for the Court in Semtek, see infra text accompanying notes 102-06, should compare his dissenting opinions in Gasperini and Stewart. Indeed, the passage injustice Ginsburg's opinion for the Court in Gasperini that is quoted in the text following this footnote may have drawn inspiration from Justice Scalia's dissent in Stewart.
164. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 35 (1988) (Scalia, J., dissenting) ("[T]he Court's description of the issue begs the question: what law governs whether the forum-selection clause is a valid or invalid allocation of any inconvenience between the parties.").
165. Gasperini, 518 U.S. at 437 n.22.
166. Id. at 438 n.22 (quoting RICHARD H. FALLON. JR., DANIEL J. MELTZER & DAVID L. SHAPIRO, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 729-30 (4th ed. 1996)).
167. 531 U.S. 497 (2001).
168. Id. at 503.
169. Id. at 504.
170. Id. at 505.
171. See Stephen B. Burbank, Semtek, Forum Shopping and Federal Common Law, 77 NOTRE DAME L. REV. 1027, 1039-47 (2002) (describing the discussion of Rule 41(b) in Semtek). As demonstrated there, the published and unpublished record concerning Rule 41(b)'s intended meaning contradicts the Court's interpretation. Id. at 1042-46. In addition,
172. [f]or those who are not disposed to consult or consider such materials, the Court's error (as a matter of interpretation) in confining the effects of a Rule 41(b) dismissal to the rendering court seems clear in light of the following consideration: if that had been the intended ambit of the rule, it would not have made sense to except dismissals for lack of jurisdiction and improper venue, since under the doctrine of direct estoppel (issue preclusion), the plaintiff would have been precluded from refiling the case in the same court in any event.
173. Id. at 1046-47 (footnotes omitted).
174. See Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1131, 1447 (2010) (Scalia, J., for himself, Roberts, C.J., and Thomas, J.) ("Undoubtedly some hard cases will arise (though we have managed to muddle through well enough in the 69 years since Sibbach was decided).");
175. see also id. at 1442 (Scalia, J., for himself, Roberts, C.J., Thomas, J., and Sotomayor, J.) ("Applying [the Sibbach 'really regulates procedure'] test, we have rejected every statutory challenge to a Federal Rule that has come before us.").
176. See Burbank, supra note 5, at 1101-02 ("The statutory limitations in question were intended to confine the power of the Court itself, a fact that requires that the Court ever be open to the reconsideration of past interpretations on sufficient demonstration that it has erred in interpreting the statute's meaning.");
177. Paul J. Mishkin, Some Further Last Words on Eue-The Thread, 87 HARV. L. REV. 1682, 1687 (1974) (noting the "inherent tendency of any institution to extend its own reach and power").
178. Letter from Edgar B. Tolman to the Honorable Joseph C. O'Mahoney, the Honorable William H. King, the Honorable Edward R. Burke, and the Honorable Warren R. Austin (May 26, 1938), reprinted in Hearings on S.J. Res. 281 Before a Subcomm. of the S. Comm. on the Judiciary, 75th Cong., pt. 2, app. at 72 (1938). With the exception of cases in which it has read Federal Rules not to apply, however, the main thing the Supreme Court has been zealous about in considering challenges to their validity has been taking cover behind the process employed prior to their effective date, particularly that part of it permitting congressional review.
179. Burbank, supra note 5, at 1179.
180. Letter from the Honorable William H. Rehnquist to the Honorable Peter W. Rodino, Jr. (Oct. 19, 1988), reprinted in 134 CONG. REC. 31, 873-74 (1988).
181. But see Burbank, Hold the Corks, supra note 12, at 1038 n.163 (arguing that the rulemakers have "not always been keenly aware of their duties).
182. 473 U.S. 1 (1985).
183. See supra note 70 (discussing Justice Brennan's dissent).
184. 498 U.S. 533, 554-70 (1991) (Kennedy, J., dissenting);
185. see also id. at 565 ("But Congress wanted the definition of substantive rights left to itself in cases where federal law applies, or to the States where state substantive law governs.").
186. See, e.g., Leslie M. Kelleher, Taking "Substantive Rights" (in the Rules Enabling Act) More Seriously, 74 NOTRE DAME L. REV. 47, 92 (1998) (stating that the separation-ofpowers account is now "generally accepted," supplanting the "myth of federalism").
187. See H.R. REP. NO. 99-422, at 20-21 (1985) ("[I]t is not the purpose of proposed section 2072 merely to restate whatever may be the constitutional restraints on the exercise of Congress' lawmaking power as against that of the States .. .."). This Report was "specifically incorporated by reference in the Report of the 1988 House bill." Burbank, Hold the Corks, supra note 12, at 1031.
188. See supra note 70.
189. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437 n.22 (1996).
190. See supra text accompanying notes 98-101.
191. See supra text accompanying notes 102-06.
192. Ely, supra note 64, at 718-40.
193. See Burbank, Hold the Corks, supra note 12, at 1017-18 (arguing that Ely's "approach substitutes restrictions on rule application for restrictions on rule formulation");
194. Burbank, supra note 5, at 1122-23, 1127 n.510, 1180-81, 1187-88, 1191 n.752 (detailing the flaws in Ely's approach).
195. See supra text accompanying note 12.
196. See Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 10 (1941) ("The first [proviso or caveat in the Enabling Act] is that the court shall not 'abridge, enlarge, nor modify substantive rights,' in the guise of regulating procedure."). For other routes to a narrowing construction of Sibbach,
197. see Burbank, supra note 5, at 1029 n.59, 1033 n.71, 1195.
198. See also Burbank, supra note 70, at 432.
199. The examples the concurrence offers-statutes of limitations, burdens of proof, and standards for appellate review of damages awards-do not make its broad definition of substantive rights more persuasive. They merely illustrate that in rare cases it may be difficult to determine whether a rule "really regulates" procedure or substance. If one concludes the latter, there is no preemption of the state rule; the Federal Rule itself is invalid.
200. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1446 n.13 (2010) (Scalia, J., for himself, Roberts, C.J., and Thomas, J.).
201. See Hanna v. Plumer, 380 U.S. 460, 464-65 (1965).
202. See Mississippi Publ'g Corp. v. Murphree, 326 U.S. 438, 445 (1946) ("Congress' prohibition of any alteration of substantive rights of litigants was obviously not addressed to such incidental effects as necessarily attend the adoption of the prescribed new rules of procedure upon the rights of litigants who, agreeably to rules of practice and procedure, have been brought before a court authorized to determine their rights.");
203. see also Burlington N. R.R. v. Woods, 480 U.S. 1, 5 (1987) ("Rules which incidentally affect litigants' substantive rights do not violate this provision if reasonably necessary to maintain the integrity of that system of rules.").
204. Murphree, 326 U.S. at 444.
205. Id. at 446.
206. See Bus. Guides, Inc. v. Chromatic Commc'ns Enters., Inc., 498 U.S. 533, 553 (1991) ("Rule 11 is not a fee-shifting statute .. ..");
207. id. ("Also without merit is Business Guides' argument that Rule 11 creates a federal common law of malicious prosecution.");
208. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 409 (1990) ("Rule 11 is not a fee-shifting statute . ..."). Among the lower-court opinions these decisions implicitly rejected,
209. see, for example, Hays v. Sony Corp. of Am., 847 F.2d 412, 418-19 (7th Cir. 1988),
210. and Szabo Food Serv., Inc. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir. 1987).
211. See also AM. JUDICATURE SOC'Y, RULE 11 IN TRANSITION: THE REPORT OF THE THIRD CIRCUIT TASK FORCE ON FEDERAL RULE OF CIVIL PROCEDURE 11, at 10-13, 35-36 (Stephen B. Burbank rep., 1989) (criticizing the lower-court decisions).
212. Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941). The same is true of the 1984 proposal to amend Rule 68, where the rulemakers hoped that by calling the consequences a sanction instead of fee shifting, they could avoid Enabling Act difficulties.
213. See Burbank, supra note 70, at 428-29 ("What is in a word? A lot in this case, because that word carries with it baggage the rulemakers hope will insulate them from their critics.").
214. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1444 (2010) (Scalia, J., for himself, Roberts, C.J., Thomas, J., and Sotomayor, J.).
215. The fundamental difficulty with both these arguments is that the substantive nature of New York's law, or its substantive purpose, makes no difference. A Federal Rule of Procedure is not valid in some jurisdictions and invalid in others-or valid in some cases and invalid in others-depending upon whether its effect is to frustrate a state substantive law (or a state procedural law enacted for substantive purposes).
216. Id.
217. Burbank, .supra note 5, at 1188.
218. See Shady Grove, 130 S. Ct. at 1440-41 (majority opinion) ("[The dissent's approach] would mean . .. that one State's statute could survive pre-emption (and accordingly affect the procedures in federal court) while another State's identical law would not, merely because its authors had different aspirations."). The extension is fainthearted because it is dependent on whether a Federal Rule is thought to be ambiguous.
219. See id. at 1442 n.7 ("[I]t is reasonable to assume that 'Congress is just as concerned as we have been to avoid significant differences between state and federal courts in adjudicating claims.' The assumption is irrelevant here, however, because there is only one reasonable reading of Rule 23.")
220. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 37-38 (1988) (Scalia, J., dissenting))).
221. Burbank, supra note 70, at 433 (alterations in original) (quoting S. REP. No. 691174 at 9, 12(1926)).
222. The House Committee on the Judiciary reported that the substantive rights protected by proposed section 2072 include rights conferred, or that might be conferred, by rules of substantive law, such as "the right not to be injured ... by another's negligence" or the right not to be subject to discrimination in employment on the basis of race. Thus, 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. The protection extends beyond rules of substantive law, narrowly defined, however. At the least, it also prevents the application of rules, otherwise valid, where such rules would have the effect of altering existing remedial rights conferred as an integral part of the applicable substantive law scheme, federal or state, such as arrangements for attorney's fees under 42 U.S.C. 1988.
223. H.R. REP. NO. 99-422, at 21-22 (1985) (footnotes omitted);
224. see also Burbank, Hold the Corks, supra note 12, at 1032-33 (citing the legislative history of the 1988 amendments).
225. See Burbank, Rules and Discretion, supra note 12, at 716. If one admits that only a lawyer can think about procedure and substantive law as if they were distinct preserves, that modern federal procedure is complex and in large measure unpredictable, and that the Federal Rules are in similar measure only superficially uniform and trans-substantive, alternative reform strategies appear in sharper focus.
226. Id.
227. See generally Catherine T. Struve, The Paradox of Delegation: Interpreting the Federal Rules of Civil Procedure, 150 U. PA. L. REV. 1099, 1102 (2002) ("Congress's delegation of rulemaking authority should constrain, rather than liberate, courts' interpretation of the Rules.").
228. See Burbank, supra note 70, at 437 ("When a Federal Rule confers substantial discretion on the trial judge, it is hard to understand why an exercise of that discretion should not be required to be consistent with federal statutes-that is treated like federal common law.");
229. see also Burbank, supra note 5, at 1193 & nn.762-63 (describing the "lawmaking choices" related to the Federal Rules). For a somewhat similar approach, which in our view does not deploy an adequately robust concept of federal common law,
230. see Adam N. Steinman, What Is the Erie Doctrine? (and What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. REV. 245 (2008).
231. See also id. at 282-87, 297-301 (treating aspects of pleading, summary judgment, and class certification as "unguided Erie choices");
232. Lucas Watkins, How States Can Protect Their Policies in Federal Class Adions, 32 CAMPBELL L. REV. 285, 297-98 (2010) ("Because [interpretive] results are not dictated by the Federal Rules, but rather by judicial gloss, they should not be protected by the Rules' presumption of validity. Instead, federal interpretations of Rule 23 should be treated as an 'unguided Erie choice between state and federal law.'" (footnotes omitted) (quoting Steinman, supra, at 287)).
233. Cf. Struve, supra note 136, at 1102 (arguing that consideration of all of the aspects of the post-1980s Enabling Act process suggests less, rather than greater, freedom in interpreting the Federal Rules).
234. Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537 (1958);
235. see also supra note 62.
236. 414 U.S. 538 (1974).
237. Even though Rule 23 does not and could not validly provide a tolling rule, in devising such a rule "not inconsistent with the legislative purpose," the Court was not required to ignore the policies exogenous to limitations that animate Rule 23, including in particular the policy against "multiplicity of activity."
238. Burbank, Hold the Corks, supra note 12, at 1027-28 (footnotes omitted) (quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 551 (1974)).
239. U.S. 867 (1984);
240. see also Burbank, Interjurisdictional Preclusion, supra note 12, at 773 ("In authorizing the Court to promulgate Federal Rules, Congress must have contemplated that the federal courts would interpret them, fill their interstices, and, when necessary, ensure that their provisions were not frustrated by other legal rules.").
241. See Burbank, Interjurisdictional Preclusion, supra note 12, at 774 n.195 (noting that Rule 13(a) "might be animated by procedural purposes within the contemplation of the Rules Enabling Act");
242. id. at 772-73, 782 (noting that Rule 13 does not "provide a rule of preclusion" and describing the Rule's origins);
243. see also id. at 782-83 & n.242 (discussing penalty dismissals under Rule 41 (b), as to which "there is a federal interest relating solely to the initial litigation that justifies a federal [judge-made] rule");
244. Stephen B. Burbank, Where's the Beef? The Interjurisdictional Effects of New Jersey's Entire Controversy Doctrine, 28 RUTGERS L.J. 87, 115-16 (1996) (exploring whether the "federal interests [underlying Rule 19] are sufficiently important, and the threat to those interests sufficiently plausible, to justify the displacement of" New Jersey's entirecontroversy doctrine, which, if applicable, would prompt joinder in situations not required by Rule 19).
245. See supra text accompanying note 138.
246. Hanna v. Plumer, 380 U.S. 460, 473 (1965). This interpretation reads "in measuring a Federal Rule" to mean "in determining the scope of a Federal Rule." "This comment, however, cannot seriously be interpreted to import an outcome determinative test of the Guaranty Trust variety into the Enabling Act given the Court's other remarks, and if it does not do that, it is not clear what the Court had in mind." Whitten, supra note 56, at 16-17 n.83.
247. Semtek Int'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 504 (2001);
248. see also supra text accompanying notes 102-06 (discussing Semtek).
249. See Burbank, supra note 106, at 1047 ("It might have been better, after all, to decide the Enabling Act question.").
250. See Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 YALE LJ. 718, 735 (1975) (advocating reading the Enabling Act "to mean that the courts, in applying the Federal Rules of Civil Procedure . .. may not forsake their responsibility to justify substantive impact in terms of substantive values [so that] [i]t would not be enough to point to Rule 23; one would have to justify invoking it").
251. See Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 NOTRE DAME L. REV. 1677, 1726 (2004).
252. The specific experience of the proposed Evidence Rules and a new jurisprudential climate combined to make members of Congress and their staffs aware of the potential of rulemaking choices to submerge substantive in favor of procedural policies, of supervisory court rulemaking to impinge on Congress's lawmaking prerogatives, and of procedure consequentially to affect substantive rights.
253. Id. Likewise.
254. for those many matters where the Federal Rules make no choices, leaving the procedure/substance accommodation to discretionary decisionmaking, the claim must be that Congress's substantive agenda is always better served by trusting to the discretion of federal judges and thus abjuring the potentially potent technique of using procedure to drive, or to mask, substance.
255. Id. at 1731-32.
256. See Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 544 n.2 (1984) (Stevens, J., concurring in the judgment) (stating that a demand requirement in shareholder derivative litigation, "designed to improve corporate governance, is one of substantive law," and because Rule 23.1 "does not clearly create such a substantive requirement by its express terms, it should not be lightly construed to do so and thereby alter substantive rights");
257. see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 96-97 (1991) (citing Justice Stevens's concurrence in Daily Income Fund with approval).
258. "[T]he major obstacle to the development of principled guides to decision is the articulation of processes by which the competing policies are identified and decisional weight attached to them." Burbank, Interjurisdictional Preclusion, supranote 12, at 789. In our view, "[f]ederal courts are not free to conjure up 'interests'; rather, they must tie them to policies already articulated in, or at least articulable from, valid legal prescriptions." Id. at 789-90.
259. See Geoffrey C. Hazard, Jr., John Geded & Stephen Sowie, The Binding Effect of Class Suits, 146 U. PA. L. REV. 1849 (1998).
260. Id. at 1937-39.
261. See Tobias Barrington Wolff, Tribute, Geoffrey C Hazard, Jr., and the Lessons of History, 158 U. PA. L. REV. 1323, 1324-25 (2010) (noting the separate "provenance and .. . evolutionary path" of these distinct doctrines and the importance of Hazard et al.'s work in clarifying that history). The potential for "one way" spurious classes, in which class members could sit out the proceedings and wait to see the outcome, only choosing to appear and be bound if the result was favorable, was the focus of some of the most intense scrutiny.
262. See Hazard et al., supra note 151, at 1857.
263. FED. R. Civ. P. 23(a)(1)-(S) (1938).
264. See James Wm. Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 GEO. LJ. 551, 570-76 (1937) (discussing the rejection of his "Effect of Judgment" proposal).
265. Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rides of Civil Procedure (I), 81 HARV. L. REV. 356, 377-78 (1967) (footnotes omitted).
266. ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, PROPOSED RULES OF CIVIL PROCEDURE FOR THE DISTRICT COURTS 60 (1937), reprinted in Kaplan, supra note 156, at 378 & n.79.
267. See, e.g., 2 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE ¶ 23.07 (1st ed. 1938) (recounting the Advisory Committee's refusal to include an "Effect of Judgment" section and offering an approving summary of the current state of the law on the binding effects of different class proceedings);
268. SBJAMES WM. MOORE, MOORE'S FEDERAL PRACTICE ¶ 23.11 (2d ed. 1948 & 1974 Supp.) (offering a more mollified account of the Advisory Committee proceedings and summarizing caselaw on the binding effects of different class proceedings under original Rule 23).
269. As Professor Chafee put it: Nowise discouraged at being thus locked out at the front door, Mr. Moore soon contrived to slip in by the back door. ... So great is the deserved respect for his treatise, that his scheme about binding outsiders has had almost as much influence upon judges as if it had been embodied in Rule 23.
270. ZECHARIAH CHAFEE, JR., SOME PROBLEMS OF EQUITY 251 (1950);
271. see also Kaplan, supra note 156, at 378-79 & n.82 (noting the influence of Moore's work on the Committee).
272. See Kaplan, supra note 156, at 380-86 (discussing different courts' various interpretations of the categories).
273. Id. at 385.
274. Id. at 384.
275. Id. at 393 (emphasis added).
276. Id. at 394.
277. Id. at 393.
278. Id. at 399-400 (footnotes omitted).
279. See Snyder v. Harris, 394 U.S. 332, 340 (1969) (describing the rule of Supreme Tribe of Ben-Hurv. Cauble, 255 U.S. 356 (1921), as "current doctrine").
280. See id. at 338 ("[T] he 1966 changes in Rule 23 did not and could not have changed the interpretation of the statutory phrase 'matter in controversy.'").
281. See Zahn v. Int'l Paper Co., 414 U.S. 291, 300 (1973) (holding that the Snyder rule requires dismissal of any plaintiff who fails to meet the jurisdictional amount),
282. overruled by 28 U.S.C. §1367 (2006), as recognized in Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).
283. That state of affairs has changed since the enactment of the Class Action Fairness Act of 2005. See infra text accompanying notes 242-43.
284. See 417 U.S. 156, 173-79 (1974). In Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), the Court held that representative plaintiffs usually must pay the costs of identifying class members for notice purposes. See id. at 359.
285. See Developments in the Law-Class Actions, 89 HARV. L. REV. 1318, 1604-23 (1976) (discussing the concern that class counsel were receiving "spectacularly large" fee awards and describing courts' efforts to control those awards). Although advocating invigoration of the spurious class action (in 1941) for purposes of private enforcement, Kalven and Rosenfield noted that administrative enforcement had a number of advantages, in particular with respect to "much new social legislation," where "the tempering of the enforcement of law by such discretion," which they had defined as "consistent, coherent, politic application,... is of real importance."
286. Harry Kalven, Jr. & Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U. CHI. L. REV. 684, 719 (1941). They continued, "No such restraint can be expected if the law is administered through private litigation; rather, the method will result in an insistence upon the harshest results and the most technical interpretations." Id.
287. 124 CONG. REC. 27, 860 (1978).
288. Id.
289. Id. at 27, 860-61.
290. Id. at 27, 859.
291. See Burbank, supra note 23, at 1522 n.329.
292. Recent scholarship has correctly noted the weakness of an agency-costs critique when applied to negative-value class actions in which the main goal can plausibly be deemed deterrence rather than compensation.... In my view, however, those authors have not succeeded in articulating a principled method for determining when deterrence is plausibly deemed the main goal of litigation (which surely requires attention to the substantive-law scheme), or in suggesting means to prevent inefficient overenforcement.
293. Id. (citationsomitted).
294. 51 F.3d 1293 (7th Cir. 1995).
295. Id. at 1296.
296. Id. at 1294-95, 1296-97. This was an aggressive use of the authority Rule 23(c) (4) (A) (now restyled as 23(c) (4)) grants to certify a class "with respect to particular issues." FED. R. ClV. P. 23(c)(4).
297. Rule 23 was amended in 1998 to authorize appellate courts to review certification decisions at their discretion. See FED. R. CIV. P. 23(f).
298. Rhone-Poulenc, 51 F.3d at 1294.
299. Id. at 1304.
300. Id. at 1299.
301. Id. at 1299-1300. It cannot have escaped Judge Posner's notice that mass tort defendants typically devote careful attention to which cases are tried (and in what order), settling those that they consider weak from a defense perspective. This phenomenon casts in a somewhat different light the statistics adduced in Rhone-Poulenc.
302. See, e.g., Castaño v. Am. Tobacco Co., 84 F.3d 734, 748-49 (5th Cir. 1996) (adopting Judge Posner's treatment of "maturing" torts in rejecting proposed nationwide class action on behalf of all nicotine-dependent smokers).
303. Rhone-Poulenc, 51 F.3d at 1300-02.
304. Id. at 1300-01.
305. Id. at 1300-02. The court also raised Seventh Amendment concerns about the district court's plan to bifurcate the trial of the common and individual issues, with separately empanelled juries deciding the latter as needed, suggesting that such a procedure might violate the Seventh Amendment's Reexamination Clause. Id. at 1302-04. That part of the court's analysis, not germane here, is unconvincing.
306. See Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 776-82 (2005) (critiquing Judge Posner's reliance on the "sparse words" of the Reexamination Clause to limit successive class action suits as "simply not sustainable").
307. In this respect, our view differs from that of Professor Richard Nagareda, who appears to posit a more static relationship between class action practice and the underlying substantive law. In his highly theorized account of these matters, Professor Nagareda correctly distinguishes between the limited delegation of rulemaking authority contained in the Enabling Act and the role of politically accountable policymakers in defining the content and scope of enforceable rights.
308. See Richard A. Nagareda, The Préexistence Principle and the Structure of the Class Action, 103 COLUM. L. REV. 149, 181-98 (2003). As suggested by the name that he chooses for his theory, however, Professor Nagareda appears to conceptualize those rights as having a fixed status that is unrelated to the potential use of aggregation for enforcement.
309. See, e.g., id. at 197 ("The [preexistence] principle prefers to respect the bundle of rights previously generated through processes in which there is a long run-flawed though that bundle might be-over the alternatives that might be created through the one-shot, and thus more fallible, vehicle of private delegations by class action rule.");
310. see also id. (acknowledging the potential for this approach to produce "inaction"). In so doing, we believe, Nagareda misses the dynamic nature of the relationship that has in fact existed between liability rules and the procedural and jurisdictional backdrop against which policymakers play those rules out. Cover, supra note 147, at 720
311. see also Geoffrey C. Hazard, Jr., The Effect of the Class Action Rule on the Substantive Law, 58 F.R.D. 307, 307 (1973) ("Substantive law is shaped and articulated by procedural possibilities.").
312. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999).
313. Id. at 845-48.
314. Professor David Shapiro's scholarly voice has been one of the most important in developing an advanced understanding of the relationship between the class action mechanism and the underlying substantive law. Shapiro's classic 1998 article offered a strong defense of an aggregate-litigation model that treats some claims as no longer the property of individual rights holders but rather the possession of an entity-the class-that should be the primary point of reference when thinking about questions of autonomy and agency in the litigation process.
315. See David L. Shapiro, Class Actions: The Class as Party and Client, 73 NOTRE DAME L. REV. 913, 918-42 (1998). In exploring the implications of this approach, Shapiro correctly concludes that the decisions involved in such a shift in paradigm must come from responsible policymakers, rather than Rule 23 itself.
316. See id. at 957 ("In my view, [Rule 23] should be framed in a way that does not place unreasonable roadblocks in the way of movement toward an entity model by responsible policymakers, nor should it impede recognition of the present force and effect of the model in the administration of class actions.").
317. Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1438 (2010) (citations omitted).
318. Id. at 1468 (Ginsburg, J., dissenting).
319. Ortiz, 527 U.S. at 845.
320. Shady Grove, 130 S. Ct. at 1443 (Scalia, J., for himself, Roberts, C.J., Thomas, J., and Sotomayor, J.).
321. Id. (citation omitted).
322. Id. But cf. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.'"
323. (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997))). Since Amchem found that the settlement class action before it stood in violation of Rule 23, the Court was not required to offer a careful analysis of the origins of this policy preference. Justice Ginsburg's reference to the "class action mechanism,"
324. see Amchem, 521 U.S. at 617, suggests a lack of precision in that regard-this incentive problem is one that the underlying substantive law must address, not Rule 23.
325. 200 Even Justice Ginsburg-in whose dissent we find much to admire-only mentions settlement once, in two brief sentences in a footnote. See Shady Grove, 130 S. Ct. at 1465 n.3 (Ginsburg, J., dissenting) ("A court's decision to certify a class accordingly places pressure on the defendant to settle even unmeritorious claims. When representative plaintiffs seek statutory damages, pressure to settle may be heightened because a class action poses the risk of massive liability unmoored to actual injury." (citation omitted)).
326. Cf. Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action, 156 U. PA. L. REV. 2035, 2086-94 (2008)
327. (describing the Court's unrealistic treatment of the opt-out procedure in Phillips Petroleum v. Shutts, 472 U.S. 797 (1985), and the doctrinal distortions that it has produced).
328. See Burbank, supra note 23, 1444 n.12 (discussing the 2005 Senate Report on the Class Action Fairness Act and reactions of courts and commentators);
329. Wolff, supra note 201, at 2038-40 & nn.6-9 (discussing factual findings in the Class Action Fairness Act concerning the impact of class action litigation on industry and public policy);
330. see also S. REP. NO. 109-14 (2005), reprinted in 2005 U.S.C.CAN. 3.
331. This species of sensible pragmatism is a hallmark of Justice Ginsburg's work in procedure and related fields. See generally Tobias Barrington Wolff, Ruth Bader Ginsburg and Sensible Pragmatism in Federal Jurisdictional Policy, 70 OHIO ST. LJ. 839 (2009).
332. See Taylor v. Sturgell, 128 S. Ct. 2161, 2176 (2008) (describing conditions necessary for a representative proceeding to be binding on absent parties).
333. Cover, supra note 147, at 728.
334. Id.
335. The historical record reflects that the drafters of Rule 23 viewed the possibility that the Rule would catalyze substantive innovation as both inevitable and desirable. There has been much debate about the goals of the drafters of Rule 23(b) (3). Study of the published and unpublished material relating to their work persuades me that, although they did not foresee, and could not have foreseen, all of the effects of this change, they were aware that they were breaking new ground and that those effects might be substantial. Seeking to ensure that members of a class would be bound by an adverse judgment as well as benefit from one that was favorable, the drafters recognized that Rule 23(b) (S) would enable those with small claims for whom individual litigation would be economically irrational to band together in group litigation against a common adversary.
336. Burbank, supra note 23, at 1487 (footnotes omitted). But cf. Richard Marcus, Exceptionalism and Convergence: Form Versus Content and Categorical Views of Procedure, 49 SUP. CT. L. REV. (2d ser.) 521, 532 (2010) ("The 1966 revision of the federal class action rule was intended, in large measure, to empower the courts to implement an aggressive strategy of social change through litigation." (footnote omitted)).
337. Cover, Supra note 147, at 735.
338. Even in such a case, being clear about whether the Federal Rule or the underlying federal law drives a rule of decision is still of great importance, as recent developments in the law of pleading amply demonstrate. Compare Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-57 (2007) (introducing a "plausibility" standard into the law of pleading in an antitrust dispute and leaving some doubt as to whether that standard would apply with equal force in other legal contexts),
339. with Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (holding that the new "plausibility" standard applies to all complaints governed by Federal Rule of Civil Procedure 8). Indeed, Iqbal itself could have-and perhaps should have-been decided on the basis that the federal common law of official immunity required a stricter pleading standard.
340. See Stephen B. Burbank, Pleading and the Dilemmas of "General Rules, "2009 Wis. L. REV. 535, 555-56, 558.
341. For a fascinating account of the Rule 23(b)(2) class action that demonstrates the extent to which its drafters were seeking to advance the goals of the emerging federal substantive law of desegregation, see David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modem Class Action, 63 FLA. L. REV. (forthcoming 2011).
342. Siw Salve Regina Coll. v. Russell, 499 U.S. 225, 231-32 (1991) (offering guidance to diversity courts in determining the content of state law).
343. This clarification of the sources of policy on aggregate liability helps to illustrate one of the great costs to federalism values that the Class Action Fairness Act of 2005 (CAFA) imposes. By moving huge numbers of state law class actions into the federal courts-including Shady Grove itself-CAFA will deprive states of the opportunity to rule in the first instance on these important questions concerning the policies bound up in their liability and regulatory rules and the impact of aggregate relief upon those policies. "These potential costs of ordinary diversity litigation are much more salient when state courts can, and predictably will, be stripped of the capacity to use a potent remedial form to implement substantive policy in a jurisdictional world that is no longer meaningfully concurrent." Burbank, supra note 23, at 1529. It would behoove the federal courts to consider employing procedures for certifying questions of state law to state courts more actively in such cases so that their rulings on the content of state law can be authoritative, rather than predictive.
344. N.Y. C.P.L.R. 1005(a) (McKinney 1963), repealed Iry L.1975, ch. 207, §2 (1975). Section (b) of the statute set forth provisions for protective orders and notice, and section (c) required court approval for dismissal or settlement of a class proceeding.
345. See id. at (b), (c).
346. Kovářsky v. Brooklyn Union Gas Co., 18 N.E.2d 287, 290-91 (N.Y. 1938) (disallowing a damages class action, but permitting a declaratory class action, in a case seeking reimbursement on behalf of a class of similarly situated customers whom the defendant utility company allegedly charged illegal fees);
347. see also ADMIN. BD. OF THE JUDICIAL CONFERENCIE OF THE STATE OF NEW YORK, EIGHTEENTH ANNUAL REPORT OF THE JUDICIAL CONFERENCIE OF THE STATE OF NEW YORK app. D at A35-36 (1973) (describing class actions in New York as generally limited "to the closely associated relationships growing out of trusts, partnerships, or joint ventures, and ownership of corporate stock").
348. Moore v. Metro. Life Ins., 307 N.E.2d 554, 558 (N.Y. 1973) (citations omitted).
349. Id.
350. Importantly, however, the New York provision requires that common issues predominate over individual issues in any class action, not just those seeking compensatory damages. Compare N.Y. C.P.L.R. 901(a) (McKinney 2006) ("One or more members of a class may sue or be sued as representative parties on behalf of all if: 1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; 2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3. the claims or defenses of the representative parties are typical of the claims or defenses of the class; 4. the representative parties will fairly and adequately protect the interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy."), with FED. R. CIV. P. 23(a)-(b) (employing similar language and standards).
351. N.Y. C.P.L.R. 901(b).
352. Sperry v. Crompton Corp., 863 N.E.2d 1012, 1015 (N.Y. 2007).
353. Id.
354. Id. (quoting Sponsor's Mem., Bill Jacket, L.1975, ch. 207).
355. Cf. Schultz v. Boy Scouts of Am., Inc., 480 N.E.2d 679, 683 (N.Y. 1985) (authoritatively defining New York's law abrogating charitable immunity as a "lossdistribution rule" applicable only to New York residents and entities, not a conductregulating provision applicable to harm carried out on New York soil, and hence inapplicable to out-of-state litigants).
356. N.Y. C.P.L.R. 901(b).
357. The opposite rule of construction applies to federal statutes, which are generally assumed to be enforceable through a class proceeding unless Congress clearly signals a contrary intent.
358. See Califano v. Yamasaki, 442 U.S. 682, 700 (1979) ("We do not find in § 205(g) the necessary clear expression of congressional intent to exempt actions brought under that statute from the operation of the Federal Rules of Civil Procedure."). Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1465 (2010) (Ginsburg, J., dissenting).
359. See Sperry v. Crompton Corp., 863 N.E.2d 1012, 1015-17 (N.Y. 2007).
360. Id. at 1018
361. (quoting Anheuser-Busch, Inc. v. Abrams, 520 N.E.2d 535, 539 (N.Y. 1988)). The omitted text includes '"differences in the statutory language'" as a basis for divergences of interpretation between the state and federal antitrust laws,
362. id., a factor that was not pertinent to the question with which the court was grappling.
363. 924 A2d 816 (Conn. 2007).
364. 47 U.S.C. §227(2006).
365. Id. § (b)(3).
366. Weber, 924 A2d at 825-28.
367. Id. at 827
368. (quoting D'Eramo v. Smith, 872 A2d 408, 416 (Conn. 2005)). This ruling drew in part on a string of cases deciding the related but distinct issue of whether section 901 (b) controls in actions brought under the TCPA in federal court. Every district court to confront that question appears to have answered in the affirmative.
369. See Shady Grove Orthopedic Assoes, v. Allstate Ins. Co., 130 S. Ct. 1431, 1465 & n.4 (2010) (Ginsburg, J., dissenting) (discussing the treatment of section 901(b) in TCPA litigation and collecting authorities).
370. Shady Grove, 130 S. Ct. at 1466.
371. We have noted the irony arising from reliance on New York sources in explanations of the limitations on court rulemaking in predecessor bills to the Enabling Act. See supra note 55. To the extent that New York's mode of allocating lawmaking responsibility and organizing statutory law contributed to Justice Scalia's confusion, he would have benefited from reading a published speech that the Chair of the original Advisory Committee gave to the New York State Bar Association in 1938. Having quoted the second sentence of the Enabling Act, William D. Mitchell observed that "[t]he present New York Civil Practice Act contains some chapters, such as the statute of limitations, which obviously do not belong in rules of procedure, but in addition to that, many of the procedural sections are interspersed with provisions affecting substantive rights." William D. Mitchell, Reform in Judicial Procedure, 24 A.BA.J. 197, 199 (1938).
372. Thus, insofar as courts have found that section 901(b) prohibits recovery under the TCPA, we should understand that result to rest upon an assessment of the limits of classwide penalty liability under New York law, rather than the failure of the TCPA to include its own express authorization for classwide relief-a subtle but important distinction. The New York legislature could decide-or have imputed to it the decision- that it will employ a precautionary principle in classwide out-of-state penalty actions, declining to make the courts of New York available for their enforcement unless the relevant legislature, like the New York legislature, has explicitly provided that classwide penalty liability is permissible. Given the potential for the class action to magnify penalty liability to a crippling degree,
373. see Richard A. Nagareda, Aggregation and Its Discontents: Class Settlement Pressure, Classwide Arbitration, and CAFA, 106 COLUM. L. REV. 1872, 1882-88 (2006) (discussing the potential distortions of liability policy the class action introduces in penalty cases under the label "the addition effect"), such a precautionary principle would not be irrational or improper, provided that it operated as a forum non conveniens doctrine and did not purport to entail preclusive consequences.
374. Cf. Loucks v. Standard Oil Co. of New York, 120 N.E. 198, 200-02 (N.Y. 1918) (Cardozo, J.) (framing the public-policy exception in choice of law as a matter of "declining jurisdiction" over a transitory cause of action that could still be enforced elsewhere). The New York Civil Practice Law and Rules does sometimes employ devices that do this kind of double duty, as the Supreme Court of the United States has recognized.
375. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 418, 426 (1996) (noting that section 5501(c) of the New York Civil Practice Law and Rules, which allows state appeals courts "to review the size of jury verdicts," is both "substantive" and "procedural"). Still, there is no evidence of which we are aware that the New York legislature had such a dual purpose in mind in this instance.
376. FED. R. CIV. P. 23(b);
377. see also Gasperini, 518 U.S. at 464-65, 468 n.12 (Scalia, J., dissenting) (valorizing the formal distinction between a "rule of law" and a "rule of review" in arguing that Rule 59 should displace the underlying law in determining when a jury award is excessive).
378. Shady Grove, 130 S. Ct. at 1466-67 (Ginsburg, J., dissenting).
379. See also Wolff, supra note 203 (discussing the perverse impact that misplaced textualism had upon the law of original federal jurisdiction in City of Chicago v. Internatioal College of Surgeons, 522 U.S. 156 (1997)).
380. Writing in the same year that the New York legislature enacted section 901(b), Professor Cover noted that truth-in-lending cases were "the single significant exception" to the failure of federal courts to "analyze [] class action cases as presenting problematic questions of substantive law." Cover, supr note 147, at 734. Moreover, having suggested as a cause the fact that "the $100 minimum recovery per violation can be and has been read as inconsistent with the multiplier effect of 23(b)(3) class actions," Cover referred to "the significant opinions of Judge Marvin Frankel in Ratner v. Chemical Bank N.Y. Trust Co., 54 F.R.D. 412 (S.D.N.Y. 1972)."
381. Id. at 734 n.43. In that case, Judge Frankel denied certification, concluding that "allowance of this as a class action is essentially inconsistent with the specific remedy supplied by Congress and employed by plaintiff in this case." Ratner, 54 F.R.D. at 416. It is no surprise that Ratner was invoked by those seeking to bar the use of class actions to recover penalties in New York.
382. See Memorandum from Sanford H. Bolz, Gen. Counsel, Empire State Chamber of Commerce (Feb. 14, 1975) (on file with authors) ("Penalties and class actions simply do not mix. This was proved in Ratner v. Chemical Bank, a case under the Federal Rules, where the combination caused a potential liability of $130,000,000 although the actual damages to individual plaintiffs were zerol").
383. "I think [Professor Moore] will agree that the Federal Rules of Civil Procedure, themselves, ought never to become the categories to which substance must bend." Cover, supra note 147, at 740.
384. Id. at 734-35.
385. See Shady Graue, 130 S. Ct. at 1473 (Ginsburg, J., dissenting) (noting that the Class Action Fairness Act of 2005 was intended to decrease the number of class actions overall).
386. See Burbank, supra note 23, at 1441-47, 1507-09.