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Tuesday, August 11, 2015

JOTWELL: Malveaux on Porter on Rules interpretation

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Elizabeth Porter's Pragmatism  Rules (Cornell L. Rev., forthcoming), which unpacks competing methodologies and approaches to interpreting the Federal Rules.

Posted by Howard Wasserman on August 11, 2015 at 02:31 PM in Article Spotlight, Howard Wasserman | Permalink


Two comments, one nitpicky and one substantive. The nitpicky comment is that the "Chevron-type deference regime" that the review describes, where the Court would review pure questions of law about the Rules de novo and defer to lower courts as far as application of Rules to facts, is not a Chevron-type deference regime at all, but more of an anti-Chevron-type deference regime - as the article itself makes clear. Though the Court appeared to carve out a pure questions of law exception to Chevron in one very early Chevron case, the idea never reappeared outside of dissents signed onto by no more than two Justices. And it's really much more of a pre-Chevron idea that Chevron replaced.

Second, for much the same reasons that the Court ultimately rejected a pure-questions exception to Chevron, I don't understand how a pure-questions/questions of application distinction would work. Aren't all cases that the Court takes about the Rules cases that arise in a particular factual setting? Don't they all involve both interpretation and application? The suggestion appears to really be that, though every case the Court takes on the Rules involves a question of application, the Court should only decide interpretive questions and remand for the lower court to apply the Court's interpretation. So in Wal-Mart, Porter says the Court should have just said, "common questions resolve issues central to the class members' claims in one stroke," and then remand for application of the one-stroke test. And in Twombly and Iqbal, the Court should have just talked about plausibility without explaining whether it found the complaints in those cases plausible. I know that some people have suggested that the Court's applications of their interpretations in these cases are in tension with the interpretations, and only confuse matters, but on balance I tend to find those interpretations so vague without an example of how the Court would apply them that I'm afraid this interpret-and-remand approach would be an unhelpful exercise.

Posted by: Asher | Aug 11, 2015 10:19:42 PM

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