The States’ Interest in Federal Procedure

Posted: 25 Aug 2016 Last revised: 16 Aug 2017

Date Written: February 1, 2017


Recent changes to federal procedure have alarmed state governments. In a series of cases decided in the past ten years, the Supreme Court has dramatically restructured basic procedural doctrines on personal jurisdiction, class actions, and pleading, among others. To signal their concern, dozens of State Attorneys General have written sharp amicus briefs in twelve out of eighteen (66%) major Supreme Court procedure cases since 2007—demanding that federal courts refrain from remaking longstanding principles. Some state legislatures have threatened to invalidate procedural decisions through tactically worded legislation, and even state courts have joined the effort—one state judge claimed that a recent class action decision was “contrary to every legal principle in the book, and I don’t care if the U.S. Supreme Court wrote it or not. It’s wrong.” Repeatedly, the States have expressed “alarm,” argued that some procedural changes are “deeply insulting,” and called some decisions “absurd,” even though many cases had no effect on state courts whatsoever. Why exactly are the States so interested in federal procedure?

This Article presents the first comprehensive study combining qualitative and quantitative data on the relationship between the States and federal procedure. The Article offers three contributions: First, employing original datasets of all Supreme Court procedure cases and state amicus brief filings since 1980, the Article catalogues the States’ unprecedented array of interventions into federal procedure, including a recent spike in state amicus briefs. Second, the Article builds a systematic taxonomy that explores the multifaceted ways by which federal procedure does in fact affect the States. This review exposes federal-state crosscurrents rooted in legal, economic, and political dynamics. Surprisingly, although Democrats and Republicans are squarely divided on procedural issues, the Article finds that the States’ institutional interest in procedure trumps political ideologies—most state amicus briefs in this context have been bipartisan. Third, the Article draws upon a wealth of federalism and administrative law scholarship to argue that scholars and federal actors should welcome the States’ involvement in federal procedure. Giving the States a role would provide rich epistemic benefits, democratic pluralism, and would improve current closed-door discussions at the Advisory Committee. The Article then suggests practical ways to accommodate the States in the structure of federal procedure.

Keywords: Civil Procedure, Conflict of Laws, Federalism, Jurisdiction, Litigation, Class Actions, Pleading

Suggested Citation

Zambrano, Diego, The States’ Interest in Federal Procedure (February 1, 2017). Stanford Law Review, Vol. 70, 2018. Available at SSRN:

Diego Zambrano (Contact Author)

Stanford University ( email )

Stanford, CA 94305
United States

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