Essay

Deforming the Federal Rules: An Essay on What’s Wrong with the Recent Erie Decision

This essay discusses two troubling decisions of the Supreme Court under the Eriedoctrine. In Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996), the Court held that a state statute providing for enhanced appellate review of jury verdicts must be followed by federal trial courts (but not federal courts of appeal) in diversity cases. This decision creates a rule that is a pastiche of federal and state law, but neither the one nor the other. Through such ad hoc lawmaking, the decision almost turns the Erie doctrine on its head by creating “‘a transcendental body of law outside of any particular State but obligatory within it.’” And in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), the Court held that a dismissal that “operates as an adjudication upon the merits” nevertheless does not preclude a subsequent action in a different forum on the same claim. We are left to wonder what kind of judgment is necessary to actually bring litigation to a close.

These decisions are puzzling and for that reason have attracted a chorus of academic criticism. Yet decisions so complex and counterintuitive demand explanation as much as criticism and this essay seeks to explain how the Supreme Court has reached this impasse in applying and expounding the Erie doctrine. Part I locates the initial problem with the decision in the unwonted complexity of the Court’s holdings. Convoluted legal doctrine may be the natural consequence of hard-fought constitutional controversies, but the principles underlying the Erie doctrine should by now have been long settled. InGasperini and Semtek, the Court could have reached a better decision in each case by the simple expedient of directly confronting the choice whether to give full effect to a Federal Rule of Civil Procedure, and if not, declaring it partially or wholly invalid. Part II offers an explanation of why the Court did not take this course. There are three components to this explanation: first, implicit or explicit doubts about the scope and validity of the Federal Rules; second, a tendency to give the Federal Rules an artificially narrow interpretation to avoid perceived conflicts with state law; and third, a resort to case-by-case determinations when a federal rule is claimed to infringe upon a state substantive right as the dominant means of resolving questions under the Erie doctrine. This essay concludes with some reflections on consequences of these decisions for the stability of the Federal Rules and their ability “to secure the just, speedy, and inexpensive determination of every action.”

The Law Clerk Who Wrote Rasul v. Bush

This article uncovers the deep doctrinal and personal roots of Rasul v. Bush, the landmark Supreme Court decision holding that federal courts have jurisdiction to hear challenges to the detention at Guantanamo Bay Naval Base, Cuba, of foreign nationals captured abroad in the war on terror. Under entrenched views of precedent, shared by lower courts, commentators, and the parties alike in Rasul, the Court could only reach that result by either distinguishing or overruling Johnson v. Eisentrager, a case arising from World War II which had arrived at the opposite conclusion regarding other habeas petitioners captured and detained abroad. However, Justice Stevens’ opinion for the Court took a more peculiar tack: it declared the case already overruled. Even stranger, the opinion did so by relying, pivotally, on an obscure dissent from an earlier case ignored by everyone else as irrelevant precedent concerning venue rather than jurisdiction. That dissent, in Ahrens v. Clark, was drafted in critical parts by a law clerk for Justice Rutledge named John Paul Stevens. 

The story of how Justice Stevens ingeniously related Eisentrager to the Ahrens dissent, and thereby reversed their precedential worth in Rasul, is a remarkable one in Supreme Court history. As told in this article, the story reveals the intriguing extent to which Stevens’ work in Ahrens over fifty years ago influenced the reasoning if not the result in Rasul. This telling, in turn, supplies insight into Rasul’s ramifications on the ability of another important class of captives in the war on terror – those confined abroad outside of Guantanamo Bay – to challenge their detention in federal court. While other articles have examined Rasul on a doctrinal or theoretical level, none have traced the decision back to Stevens’ work in Ahrens. That archaeology is essential for a full understanding of Rasul, and for an appreciation of its place in the history of the Supreme Court and the jurisprudence of Justice Stevens. 

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