Con Law Center Articles and Publications

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Publication Date

January 2005


This Article examines the long-standing conflict between Rule 17(b) of the Federal Rules of Civil Procedure, which was promulgated by the Supreme Court, and a federal statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Article emphasizes that, when a Federal Rule incorporates state law, many federal courts have applied and inappropriate analysis to conflicts between congressional statutes and Supreme Court Rules; these courts focus on a clash of federal-state authority, rather than recognizing that the conflict presents a horizontal clash of federal authority.

The Article has three goals. First, the Article identifies the flaw in current statute-Rule conflict analysis when a federal statute conflicts with a Federal Rule that incorporates state law. The Article recognizes that these statute-Rule conflicts present potential power conflicts between Congress’s and the Supreme Court’s authority to create procedure for the federal courts, rather than conflicts of federal and state law. Second, the Article provides a resolution of the apparent conflict between the CERCLA statute and Rule 17(b). Third, the Article highlights the narrowing power of federal courts in construing federal statutes or filling the interstices in federal statutes with federal common law under current Supreme Court jurisprudence. The Article also compares the courts’ narrowed adjudicatory authority in creating federal common law with the federal courts’ broader authority when interpreting a federal statute for the purpose of determining if the statute preempts state law. Given the increasingly narrow power of federal courts in statutory construction and creating federal common law, this Article suggests that the Supreme Court’s statutorily (and constitutionally) circumscribed procedural rulemaking authority may be broader in many instances than the federal courts’ principal authority of adjudicating cases and controversies, at least when the case involves construction of a federal statute.

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Baylor Law Review

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