The Yale Law Journal

November 2018

An Avoidance Canon for Erie: Using Federalism to Resolve Shady Grove’s Conflicts Analysis Problem

Civil ProcedureFederalismConflict of Laws

abstract. Eight years ago, the Supreme Court’s tripartite split in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co. highlighted a troublesome lacuna in the Court’s Erie jurisprudence. That case revealed that where it is ambiguous whether a Federal Rule of Civil Procedure and a state law conflict, the Court has no standard doctrinal method for resolving that ambiguity. This gap matters for our federal-state balance. Under the approach developed in Sibbach v. Wilson & Co. and affirmed in Hanna v. Plumer, once a valid Federal Rule is deemed to conflict with a state law, it displaces that state law in federal court. Thus, the operative question for whether state laws, even those with substantive purposes, will apply in federal court is whether a court believes there is a conflict. Recently, federal courts have struggled to reach consistent results in the face of this doctrinal gap. Divergent approaches to such Erie conflicts have opened circuit splits on a number of issues, ranging from the applicability of certain provisions of anti-SLAPP statutes to state pleading requirements.

This Note proposes a federalism-based avoidance canon to fill in this gap. Under this canon, federal courts facing a potential conflict would first ask whether there is a plausible interpretation of the Federal Rule in question that does not conflict with the relevant state law based on its text and, if necessary, Advisory Committee Notes. If there is, they would default to that interpretation; if there is not, they would apply the Court’s standard approach from Hanna and Sibbach. This Note first evaluates the history of Erie conflicts and how the Court arrived at its result in Shady Grove. The Note then explores the role that statutory interpretation can play in resolving the Shady Grove split, especially through avoidance canons. Next, the Note offers five arguments in favor of this canon rooted in federalism, separation of powers, and institutional choice concerns and addresses several counterarguments and potential alternatives. It concludes by demonstrating how this canon would operate in the context of two ostensible conflicts that have produced circuit splits in recent years.

author. Yale Law School, J.D. expected 2020. I am deeply indebted to Professor Abbe Gluck for her thorough feedback, insightful guidance, and encouragement throughout the development of this Note. I thank Professor Bill Eskridge for his introduction to the Erie doctrine in his Civil Procedure course and many subsequent, illuminating conversations on the subject. Thanks also go to Professor Kate Stith, Talya Lockman-Fine, and Alex Loomis for reading early drafts and to Keshav Poddar, Danny Gifford, and Robert Kindman for their unremitting support. Finally, I thank the editors of the Yale Law Journal, especially Bill Powell, for their thoughtful feedback and editing. All errors and omissions are my own.