September 14, 2010
Struve on the Rules Enabling Act
Catherine Struve (University of Pennsylvania Law School) has posted Institutional Practice, Procedural Uniformity, and As-Applied Challenges under the Rules Enabling Act to SSRN.
Addressing the Supreme Court’s decision last Term in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., this symposium essay focuses on the debate between the plurality and Justice Stevens concerning the availability of as-applied challenges to the validity of rules promulgated under the Rules Enabling Act. Agreeing with Professor Allan Ides’ article in the same symposium, this essay argues that Justice Stevens’ proposed approach strikes a reasonable balance: State-specific as-applied invalidation of a federal rule should be permissible but rare.
A survey of debates over facial and as-applied review in other contexts shows that the choice among facial review, as-applied review, and a combination of the two depends on both the institutional setting and the nature of the constraint that forms the basis for the review. In the context of Enabling Act review of federal rules, as-applied review is not unprecedented, and it has a role to play. Though the rulemakers are attentive to the limits imposed by the Enabling Act, they may not always be able to foresee a rule’s future effects on substantive rights. Admitting the possibility of the occasional as-applied challenge to a rule’s validity permits questions of a rule’s effect on substantive rights to develop in the context of concrete cases, before judges who are likely to have some familiarity with the relevant substantive-law concerns. The information developed in such litigation can inform both a court’s evaluation of the rule’s application in the case before it and future deliberations of the rulemakers.
As-applied challenges can cause uncertainty, can be difficult to resolve, and can impair the nationally uniform application of the federal rules. But the costs of state-specific as-applied review could be controlled by requiring a strong showing before finding a rule invalid as applied. There already exist other features of federal court practice that currently produce significant inter-state procedural variation. And the federal system asks state courts to tolerate similar disuniformity in state procedure.