Mark P. Gaber


This Article examines the Court’s decision in Shady Grove, concluding that Justice Scalia’s plurality opinion has the better argument—his approach is the most consonant with precedent and the least disruptive to the careful balance the Court has struck with its Erie line of cases. Part II examines Justice Scalia’s plurality opinion, and considers its strengths and weaknesses. I then turn to Justice Ginsburg’s dissenting opinion, concluding that it rests on a fundamental misapplication of the Erie doctrine, though she admirably attempts to give teeth to the substantive rights limitation of the Rules Enabling Act—a limitation that the Erie doctrine admittedly ignores. Part III considers the concurring opinion of Justice Stevens, who suggests a middle ground test that, while initially appealing, collapses under the weight of a closer analysis. It is not yet clear which opinion will provide controlling precedent in future cases, and this paper argues that the plurality opinion should control as the narrowest ground of decision, rather than Justice Stevens’s concurrence. I conclude with a discussion of the case’s ironic result and the lesson Shady Grove provides for future Congresses that might attempt to achieve substantive outcomes by regulating procedure. Shady Grove reached federal court through diversity jurisdiction made possible only by a Republican Congress’s enactment of the Class Action Fairness Act (CAFA), which, ironically, was passed with the purpose of reducing the number of class actions. Since its enactment, CAFA has become a tool for the plaintiff’s bar—leading to even more class action suits. Congressional regulations of procedure are uniquely capable of backfiring by producing results inconsistent with the legislative purpose.