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Wednesday, February 13, 2019

Right result, mess of an analysis

Erie can be complicated. But a lot of that complication comes from courts conflating different strands of the analysis. Pappas v. Philip Morris from the Second Circuit illustrates that problem.

At issue is whether an executrix suing on behalf of an estate can proceed pro se; Connecticut law says no, while Second Circuit precedent interpreting 28 U.S.C. § 1654 says yes. The court then went into several disconnected aspects of Erie--whether rules of practice are procedural or substantive, § 1654 and precedent, local rules and inherent power to regulate practice before a district, and the twin aims of Erie.

But this should have been a pretty easy case and I am not sure why the court took such a complicated route.

• At times the court says the issue of whether a representative plaintiff can proceed pro se is controlled by § 1654 and judicial interpretations of that. If so, the only question should have been whether § 1654 was valid under the Necessary and Proper Clause and the power to constitute the federal courts. Under the RDA, state law controls except where "Acts of Congress otherwise require or provide." Section 1654 is an Act of Congress that provides (as interpreted) that a representative can proceed pro se in certain circumstances; if valid (which it is), it controls. There was no need to ask whether it was procedural or substantive, to mention the twin aims of Erie, or to ask whether the statute "encroaches" on federal law, except to the extent that encroachment renders § 1654 constitutionally invalid. When the conflicting federal rule comes from a congressional enactment, the rule controls so long as Congress had the power to enact the rule. This is the separation-of-powers gloss on the constitutional issues in Erie--the issue is not that state law had to control, it was that the source of superseding federal law had to be Congress.

• At other times the court says the issue is a matter of local rules and inherent power. If so, the court needed to do a full Erie analysis--asking about forum shopping and inequitable administration of laws. But the sum of this analysis was the statement that there was "no reason to believe" it would lead to forum shopping or inequitable administration. If this is a true conflict between state law and federal common law, a lot more is required.

As I said, the right result. But a convoluted way to get there.

Posted by Howard Wasserman on February 13, 2019 at 10:16 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Interesting ruling indeed.But I don't see here any messy analysis,nor how otherwise could be analyzed.What counts,is that the rule has been very well interpreted, here:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts,respectively,are permitted to manage and conduct causes therein.

So, it is stated : "as,by the rules of such courts " granting specific power to federal courts , to conduct procedures as they find fit and in accordance with the case at issue ( inherent autonomous power).

But above all:

The circuit here,has followed clearly and accurately,the precedent of the Supreme court in Sperry Vs.state of Florida,I quote:

The United States Supreme Court reversed, holding that Congress had provided the Commissioner of Patents with the ability to prescribe regulations governing the recognition and conduct of agents, attorneys, and other persons representing applicants before the Patent Office. Id. at 384, 404. The Court reasoned that “registration in the Patent Office confers a right to practice before the Office without regard to whether the State within which the practice is conducted would otherwise prohibit such conduct.” Id. at 388. See also Servidone Constr. Corp. v. St. Paul Fire & Marine Ins. Co., 911 F. Supp. 560, 574 (N.D.N.Y.1995) (“There is, of course, no question that the right to practice in federal court includes the right to appear there not withstanding state laws which regulate the practice of law.”) (citation omitted).

End of quotation:

Solving so,clearly,the conflict of Erie in that case,in accurate and reasonable manner.Not less,the court has defined very well,the legal philosophy distinguishing between substantive law,and procedural law(see p.11 to the ruling).


Posted by: El roam | Feb 13, 2019 12:02:44 PM

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