Basic Flow Chart

1. Basic Flow Chart

2. Judge Made Rule Constitution What is the source of the Federal Practice Const’l Analysis Fed Stat FRCivP Other (Erie) Analysis Statute Analysis FRCivP Analysis

3. Constitutional Analysis

4. Constitution Based Federal Practice Is there a conflict with State Rule? Yes No Apply Federal Apply Both

5. Statutory Analysis

6. Statutory Federal Practice Is there a conflict with State Rule? Yes No Is Statute Constitu-tional? Yes No Apply Federal Apply State Apply Both

7. FRCivP Analysis

8. Does FRCivP conflict with State rule ? Yes Is it constitutional ? No No Yes Is it arguably procedural ? No Yes Apply State Apply Both Apply FRCivP

9. Alternate FRCivP Analysis

10. Does FRCivP conflict with State rule ? Yes Is it constitutional ? No No Yes Is there a judge-made practice Is it arguably procedural ? No Yes No Yes Go to Erie Apply State Apply FRCivP Apply Both

11. Erie (Judge Made Rule) Analysis

12. Does practice conflict with state rule ? Yes Will applying fed practice lead to: 1. Forum Shopping 2. Inequitable Administration Yes No No Apply Both Apply Fed practice Apply State

13. Erie (Judge Made Rule) Analysis 2d edition

14. Does practice conflict with state rule ? Yes Will applying fed practice lead to: 1. Forum Shopping 2. Inequitable Administration Yes No No But also discuss: 3. State v. Federal Interests 4. Interference with state’s regulation of primary conduct Apply Both Apply Fed practice Apply State

15. More Sophisticated Flow Chart

16. A Closer Look Inside Hidden Decisions

17. Does FRCivP (or statute) conflict with state practice

18. Only one plausible interpretation ? Which interest is more important No State Yes Interpret Federal rule narrowly to avoid impairing important state interests (Finding no conflict) Fed Interpret Federal rule broadly to accomplish important federal goals (Finding a conflict) Adopt that interp. Apply Both Apply State = Apply Fed

19. Is FRCivP (or statute) constitutional ?

20. Does it pass traditional tests Does it excessively interfere with state regulation of primary conduct Yes Yes No No Unconstitutional Constitutional

21. Is particular FRCivP arguably procedural ?

22. Is particular FRCivP arguably procedural ? Yes No Give deference to prima facie judgment of Supreme Court, Congress, and the Rules Advisory Committee that rule is procedural. Yes Now decide No