moonman157 wrote:Thanks. And, just to be clear, so that I'm understanding things, if a court determines that there isn't a conflict between a FRCP and a state law, then under Scalia's plurality in Shady Grove you look to see if the FRCP is indeed procedural (it will be), and under Stevens's concurrence you look to see if it abridges, enlarges, or modifies a state substantive right with little doubt?
Well, apparently I only have one sentence worth of notes on Shady Grove, but it looks like in that case, Scalia read the rule broadly so that it did conflict and override the state law. My casebook doesn't mention Stevens' concurrence, but it does say that a rule should be read to minimize its intrusion on substantive rights if the alternative reading is defensible (I guess the plurality felt the alternative reading wasn't defensible there, or that the state law didn't protect substantive rights?).
But if the FRCP is broad enough to cover the issue and there's no conflict, apply the FRCP.
If it's broad enough to cover the issue and there's a conflict, you do the validity test.
If the FRCP is not broad enough to cover the issue in the first place, then you apply the state law unless there's another federal practice in the question (there probably will be). If the issue is purely substantive, then you'd apply the state law, but if not, then you're going to have to determine whether to use the federal practice or the state law based on the twin aims test. Then also use Byrd balancing as per Gasperini, etc. if your prof has gotten that far.
Might be prof-dependent. Ours gave us her own idea of what she wanted. She said apply all four on the exam: Substance/Procedure distinction, Simple York O/D test, Byrd Balancing test, Modified Hanna O/D test. Then decide which law applies based on which way most of them point.