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The Powers that Be: A Reexamination of the Federal Courts' Rulemaking and Adjudicatory Powers in the Context of a Clash of a Congressional Statute and a Supreme Court Rule


Bernadette Bollas Genetin


University of Akron - School of Law


Baylor Law Review, Vol. 57, p. 587, 2005
U of Akron Legal Studies Research Paper No. 05-09

Abstract:     
This Article assesses the federal courts' analysis of conflicts between congressional statutes and Supreme Court Rules that incorporate state law. Currently, courts treat these conflicts either as conflicts between two statutes of the same lawgiver or as conflicts between federal and state law. This Article concludes that both analyses are flawed - the first because the rulemaking authority of Congress and the Supreme Court differ and the second because Supreme Court Rules constitute federal law even if they incorporate state standards. Instead, the Article emphasizes that statute-Rule conflicts should be analyzed as presenting separation or allocation of power issues.

The Article then demonstrates that correct analysis matters by analyzing the apparent conflict between Fed. R. Civ. P. 17(b), which incorporates state law regarding the capacity of a dissolved corporation to be sued, and provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). When the CERCLA-Rule 17(b) conflict is viewed as a horizontal clash of the rulemaking authority of Congress and the Supreme Court, it becomes clear that federal courts should use a federal common lawmaking analysis, rather than an obstacle preemption analysis, to construe the CERCLA statute. Federal courts currently have less authority to construe federal statutes to serve congressional purposes that are unexpressed in statutory text under federal common lawmaking jurisprudence than they have under obstacle preemption analysis. Thus, when the CERCLA-Rule 17(b) clash is analyzed as creating a collision of congressional and Supreme Court rulemaking power, the decisions of the majority of courts to reach the issue would be overturned. The Article, finally, questions the validity of the different approaches to statutory construction under federal common lawmaking jurisprudence and obstacle preemption analysis.

Number of Pages in PDF File: 94

Keywords: Federal Rules, Conflict, Preemption, Federal Common Law, CERCLA, Separation of Powers, Allocation of Powers, Obstacle Preemption, Statute-Rule Conflict, Rulemaking

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Date posted: May 3, 2006  

Suggested Citation

Genetin, Bernadette Bollas, The Powers that Be: A Reexamination of the Federal Courts' Rulemaking and Adjudicatory Powers in the Context of a Clash of a Congressional Statute and a Supreme Court Rule. Baylor Law Review, Vol. 57, p. 587, 2005; U of Akron Legal Studies Research Paper No. 05-09. Available at SSRN: http://ssrn.com/abstract=899627

Contact Information

Bernadette Bollas Genetin (Contact Author)
University of Akron - School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
330-972-6939 (Phone)
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