The Supreme Court regularly faces Erie issues involving the displacement of state law by a Federal Rule of Civil Procedure. Under Hanna v. Plummer, federal rules displace state law if they were intended to apply to the matter at issue and are valid. But in such cases, the Court has already encountered the rule once before, at the time it adopted the rule and transmitted it to Congress. Why is the Erie question decided at the back end of the process rather than at its front? If the question of whether a rule is intended to displace state law were decided at the time of the rule’s creation, both private parties and the judicial system would benefit from the increase in predictability and certainty. Moreover, the Advisory Committee’s stating an intent for a rule to displace state law would force the Supreme Court to police overreaches by the federal rules as against state interests by using the Rules Enabling Act as an enforceable limit on the federal rules. This would be an improvement over the current system, under which concerns about intrusions on state prerogatives are expressed not through a validity analysis but by relying on a fiction that the rule was not intended to apply.
Rensberger, Jeffrey L.
"At the Intersection of Erie and Administrative Law: Front-Loading the Erie Question into the Adoption of a Federal Rule,"
Akron Law Review: Vol. 52:
2, Article 6.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol52/iss2/6