Institutional Practice, Procedural Uniformity, and As-Applied Challenges under the Rules Enabling Act

INTRODUCTION I. SHADY GROVE ON As-APPLIED CHALLENGES II. As-APPLIED CHALLENGES AND PRIOR PRACTICE A. Sibbach (and Schlagenhauf) and Hanna B. Sub-Rule As-Applied Review C. State-Specific As-Applied Review 1. Civil Rule 23.1 2. Civil Rule 15(c) 3. Civil Rule 41 4. Other Rules III. BENEFITS AND COSTS OF As-APPLIED REVIEW A. As-Applied Review in Other Contexts B. Possible Benefits C. Possible Costs 1. Uncertainty 2. Difficulty 3. Disuniformity D. Tolerating Disuniformity 1. Federal Court Examples a. Rules that Incorporate State Law b. Rules that Grant Discretion c. Local Federal Rules d. Erie Questions Not Controlled by a Federal Provision 2. State Court Examples a. Reverse-Erie b. Independent and Adequate State Law Grounds CONCLUSION INTRODUCTION As others have observed, the Supreme Court's decision last Term in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. (1) settles little with respect to the Erie (2) doctrine. (3) For the purposes of diversity actions in federal courts, the Court held, Federal Rule of Civil Procedure 23 trumps a New York state statute--New York Civil Practice Law and Rules section 901 (b)--barring the use of class actions "to recover a penalty, or minimum measure of recovery created or imposed by statute." (4) But beyond that, members of the Court agreed only at a high level of generality about how to interpret the federal Rule. And there is no majority opinion explaining why Rule 23, construed to govern the question in Shady Grove, is valid. If the Shady Grove opinions settled little, they raised a host of interesting questions. Like Professor Ides, (5) I will focus in this Article on the debate between the plurality and Justice Stevens concerning the availability of as-applied challenges to the validity of rules promulgated under the Rules Enabling Act. (6) And like Professor Ides, I will argue that Justice Stevens has the better of the argument. Having had the benefit of reading a draft of Professor Ides's article after I researched this Article but before I drafted it, I will try to minimize the extent to which I duplicate his insightful and persuasive arguments. Part I of this Article frames the question by describing the dispute, in Shady Grove, over facial and as-applied challenges under the Rules Enabling Act. Part II reviews existing evidence for the possibility of as-applied Enabling Act challenges. Although the Supreme Court, famously, has never invalidated a rule under the Enabling Act, some statements by rulemakers and by Justices support the possibility of as-applied challenges to rule validity, and both the Court and lower federal courts have occasionally entertained such challenges. Parts I and II introduce a distinction between two sorts of as-applied review, which I will call (respectively) sub-rule as-applied review and state-specific as-applied review. The crux of the dispute in Shady Grove concerned the legitimacy of state-specific as-applied review; sub-rule as-applied review, by contrast, seems less controversial. Part III sets out to assess the costs and benefits of as-applied Enabling Act review, with a particular focus on state-specific as-applied review. Subpart III.A sets the stage by briefly reviewing discussions of facial and as-applied challenges in other contexts. The choice among facial review, as-applied review, and a combination of the two appears to depend on both the institutional context and the nature of the constraint that forms the basis for the review. In subparts III.B and C, I focus on the benefits and costs of as-applied review in the particular context of Enabling Act review of federal rules. Subpart Part III.B suggests that though the rulemakers are attentive to the limits imposed by the Enabling Act, they may not always be able to foresee a rule's future effects on substantive rights. …