Revising the Federal Rules of Civil Procedure: Carving Out a More Active Role for Congress

The adoption of the Federal Rules of Civil Procedure was a major victory for progressives in the United States. The Rule made access to justice less about one’s ability to hire a high-priced lawyer and more about the swift determination of the merits of the dispute between the parties. Despite efforts of some business interests to alter the rules, by most accounts, by most accounts, the Rules have been successful. But occasional conflicts between the application of federal vs. state law in diversity actions create hard policy choices. As a rule, in diversity actions, federal courts must apply state substantive law and federal procedural law. Of course, drawing the line between substance and procedure often presents courts with difficult vertical choice of law problems. At time, the application of a federal rule may impair significant state substantive interests. However, allowing litigants too easily to challenge the application of a federal rule conflicts with the overall goal of the Rules, which should advance the “just, speedy, and inexpensive determination of every action and proceeding.” Satellite litigation to determine whether a federal or state rule applies cuts against the policy of inexpensive and uniform application of the federal rules. Two recent conflicts between federal and state law present challenges in the application of Court precedent. In Twombly v. Bell Atlantic Corp. and then in Ashcroft v. Iqbal, the Supreme Court rewrote F.R.C.P. 8(a)(2)’s liberal pleading standard, making access to court more difficult for many plaintiffs. Some states have rejected those holdings and adhere to the more liberal standard reflected in the adoption of the Rules. And yet, plaintiffs face more stringent pleading requirements when defendants can remove actions from state to federal court. Application of federal law impairs an important state substantive policy: liberal access to justice. The second conflict that has divided federal court is whether a federal court must apply federal pleading and summary judgment rules in defamation cases when the state would apply special anti-SLAPP provisions. Those provisions make dismissal of certain defamation actions easier than in cases that do not involve First Amendment speech challenges. Again, at issue is the conflict between the uniform application of the relevant federal procedural rules and an important state substantive policy, the advancement of free speech. These two areas present special problems. Generally, federal procedural rules should apply. The two problems discussed in this article present special problems where application of federal law impairs important state interest. Normally, one could expect the Court in conjunction with the Judicial Conference’s Advisory Committee on Civil Rules to revise the rules. Under Chief Justice John Roberts’ leadership, the conference’s members are now “ideologically predisposed to think like Federalist Society members, demographically predisposed to think like elite white males, or experientially predisposed to think like corporate defense lawyers.” As a result, progressive reforms of the Rules are not likely to originate with the Court and the Advisory Committee. As a general matter, Congress should take a limited role in reforming the Rules. At the same time, Congress has created special rules in the past. For example, it did so for overtly pro-business reasons in its adoption of special pleading standards that were part of the 2005 Class Action Fairness Act. This article argues for Congress to act to modify the F.R.C.P. in two specific areas: one would clarify that more generous state pleading rules must apply to actions removed from state courts in diversity actions, the other would make clear that state pleading and summary judgment rules should apply when the controlling state law includes anti-SLAPP provisions.