Vanderbilt Law Review

Article Title

Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process


Glenn S. Koppel


There is a sense of deja vu to the vision of a uniform body of state procedural law applicable in every state court throughout the nation. Swift v. Tysons dream of a nationally uniform body of state substantive common law that mirrored an evolving body of uniform federal common law never materialized because state courts refused to defer to federal common law, which was applied only in federal court. Swift itself was overturned in 1938 by the Supreme Court's ruling in Erie Railroad v. Tompkins that federal courts must defer to the substantive lawmaking authority of state courts. But almost simultaneously with the demise of Swift, the dream of uniform state common law was reincarnated into a vision of uniform state procedural law through the enactment of the Rules Enabling Act (REA) and the adoption of the Federal Rules of Civil Procedure.

The Federal Rules prescribed a uniform code of federal procedure applicable in every federal district court, replacing the hodgepodge of federal practice that had developed under the Conformity Act of 1872. Inter-federal district court uniformity was premised on the ideal that "any lawyer could go to any federal court, and be secure that she could understand and master the procedure required, since that procedure would be at once uniform and simple." Just as Justice Story had hoped that state courts would defer to an evolving and enlightened body of uniform federal decisional law, so too did the proponents of the REA expect the states to follow the uniform body of procedural law embodied in the Federal Rules. They hoped to produce intrastate procedural uniformity and reverse the prior federal court practice under the Conformity Act of following local state procedure. As states replicated the federal rules, interstate procedural uniformity throughout state courts would result.

During the first thirty years after their adoption, the Federal Rules realized the drafters' goal of inter-federal district procedural uniformity. And, until the mid-1970s, it seemed that the goal of interstate procedural uniformity would be achieved from the top down as a lengthening list of states adopted the federal rules. The words of one commentator reflected this optimism: "The drafters of the 1938 Federal Rules of Civil Procedure hoped to establish those rules as a model that the states could adopt, thus fostering national and intrastate procedural uniformity."'