This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus for avoidance, which has permitted state law to override Federal Rules and has permitted differing interpretations of a single Federal Rule in diversity and federal question cases, also permits replication, on a Rule-by-Rule basis, of the results realized under Guaranty Trust’s outcome determinative principle. The Article moves from an historical perspective on the Court’s use of avoidance in Erie cases to examination of the three competing views on avoidance espoused in the majority, concurring, and dissenting opinions in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010). Justice Scalia, in dicta, proposes a type of “classical” or “narrow” avoidance; Justice Stevens, in concurrence, suggests a broader avoidance canon modeled on “serious doubts” principles, which would counsel avoidance if the most natural construction of a Rule would raise serious doubts about the Rule’s validity under the REA; and Justice Ginsburg, in dissent, advocates avoidance based almost solely on respect for important state interests and regulatory policies. The Article concludes that an avoidance principle is warranted in REA cases, and it should be based on analogy to construing statutes narrowly to avoid serious constitutional doubts, in a manner similar to the avoidance principles proffered by Justice Stevens in Shady Grove. Such an avoidance rule of interpretation, however, should be guided by whether a Rule would encroach on Congress’s substantive lawmaking powers, rather than on whether a Rule might interfere with an unbounded concept of important state interests or regulatory policies. Further, in determining whether there is a permissible saving construction of a Rule that would permit avoidance of a conflict between the Rule and state law, the Court should, in line with its use of avoidance in other Enabling Act contexts, construe the Rule in accord with its text and its history and purposes, as set forth in the Advisory Committee Notes.
Akron Law Review
Bernadette Bollas Genetin, Reassessing the Avoidance Canon in Erie Cases, 44 Akron Law Review 1 (2011).