Is the Supreme Court Disabling the Enabling Act, or Is Shady Grove Just Another Bad Opera?

44 Pages Posted: 28 Jun 2014 Last revised: 16 Nov 2016

See all articles by Robert Condlin

Robert Condlin

University of Maryland Francis King Carey School of Law

Date Written: November 15, 2014

Abstract

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, or legal rule, and must pay their lawyers to argue for or against all three possibilities. The Court’s most recent pronouncement on the issue, in the Shady Grove case, may have made the debate permanent, by turning it into one of constitutional principle as much as dueling theories of statutory interpretation, effectively disabling the Enabling Act as a rule of law. When something is broken beyond repair it is time to buy a new one, and when a judicial doctrine is confused beyond clarification it is time to start over. Or, at least that is what I shall argue.

Keywords: Rules Enabling Act, statutory interpretation, judicial doctrine, federalism, separation of powers, federal rules, Erie Doctrine

Suggested Citation

Condlin, Robert J., Is the Supreme Court Disabling the Enabling Act, or Is Shady Grove Just Another Bad Opera? (November 15, 2014). Seton Hall Law Review, Vol. 47, No. 1, 2016, U of Maryland Legal Studies Research Paper No. 2014-29, Available at SSRN: https://ssrn.com/abstract=2459441 or http://dx.doi.org/10.2139/ssrn.2459441

Robert J. Condlin (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

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