The Justices of the Supreme Court cannot agree on the effect and interpretation of the Rules Enabling Act with respect to what it means to "abridge, enlarge or modify" substantive law. This article argues that this has occurred because the Court looks at the Act out of the historical and legal context in which Congress enacted it. In giving the Court the power to promulgate the Federal Rules of Civil Procedure, Congress inserted the substantive-law clause so that the Court could not trench upon Congress's role as a source of substantive federal policy. It is highly unlikely that anyone in Congress was thinking about the effects of the Federal Rules on state substantive law because in 1934, when Congress passed the Rules Enabling Act, Erie Railroad v. Tompkins lay four years in the future, and it is fair to say that few people anticipated the abandonment of Swift v. Tyson that Erie accomplished. The Court's failure to appreciate that Congress did not foresee the demise of Swift has led it into a needless thicket.
Number of Pages in PDF File: 63
Keywords: Rules Enabling Act, Federal Rules of Civil Procedure
Doernberg, Donald L., The Tempest: Shady Grove Orthopedic Associates, P.L. V. Allstate Insurance Co.: the Rules Enabling Act Decision that Added to the Confusion--But Should Not Have
44 Akron L. Rev. 1147 (2011) (November 11, 2011). Available at SSRN: http://ssrn.com/abstract=1958165