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Abstract

This Article chronicles the Supreme Court’s inconsistent use of an avoidance canon in cases construing the substantive rights limitation of the Rules Enabling Act (Enabling Act or REA). It focuses primarily on the avoidance canon as used in cases under the REA branch of the Erie doctrine but also discusses avoidance in other REA contexts. The Article concludes that a reassessment and refocusing of the avoidance canon in Enabling Act jurisprudence is necessary... This Article explores the purposes and methodology that should guide avoidance in REA cases... I focus, in this Article, primarily on a subset of this group of cases—cases presenting potential conflicts between state law and Federal Rules promulgated by the Supreme Court under the REA...Section II of this Article traces the Court’s use of an avoidance canon in Erie, REA cases and in non-Erie, REA cases. Section II dwells on the pre-Hanna period, reminding that the Court’s use of outcome-determinative principles under Guaranty Trust minimized the pre-Hanna role of avoidance, subordinated Federal Rules to state law, and resulted in differing interpretations of Federal Rules in diversity and federal question cases. Section II then examines avoidance in postHanna, Erie cases...Section II, finally, examines the Court’s use of avoidance in non-Erie, REA cases in which the Court has generally used serious doubts avoidance and has adopted saving constructions of Federal Rules that are more faithful to Rule text and Rule purposes and history as set forth in Advisory Committee materials. Section III examines the views in the plurality, concurring, and dissenting opinions in Shady Grove regarding the extent and nature of an appropriate avoidance canon...In Section IV, I conclude that avoidance in REA cases under Erie should be based on separation of powers principles and should incorporate a serious doubts methodology...I also discuss the advantages of a serious doubts avoidance model for Rule construction over the models suggested by Justices Scalia and Ginsburg.

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