Basic Flow Chart

What is the source of the

Federal Practice

Judge Made RuleConstitution

FRCivP Analysis

Other (Erie)

Analysis

Const’l Analysis

Statute Analysis

FRCivPFed Stat

Constitutional Analysis

Constitution Based Federal Practice

Is there a conflict

with State Rule?

Apply Both

Apply Federal

Yes No

Statutory Analysis

Statutory Federal Practice

Is there a conflict

with State

Rule?

Apply Both

Apply Federal

Yes No

Is Statute

Constitu-tional?

Apply State

Yes No

FRCivP Analysis

DoesFRCivP

conflict withState rule

?

Apply Both

Apply FRCivP

Yes

No

Is itconstitutional

?

Apply State

Yes

No

Is itarguably

procedural?

No

Yes

Alternate FRCivP

Analysis

DoesFRCivP

conflict withState rule

?

Apply Both

Apply FRCivP

Yes

No

Is itconstitutional

?

Apply State

Yes

No

Is itarguably

procedural?

No

Yes

Is therea judge-made

practiceNo

Yes

Go toErie

Erie (Judge Made Rule)

Analysis

Doespractice

conflict withstate rule

?

Apply Both

Apply Fed practice

Yes

No

Will applying fed practice lead to:

1. Forum Shopping2. Inequitable

Administration

Apply State

No

Yes

Erie (Judge Made Rule)

Analysis2d edition

Doespractice

conflict withstate rule

?

Apply Both

Apply Fed practice

Yes

No

Will applying fed practice lead to:

1. Forum Shopping2. Inequitable

Administration

Apply State

No

Yes

But also discuss:3. State v. Federal Interests4. Interference with state’s

regulation of primary conduct

More Sophisticated Flow Chart

A Closer Look Inside Hidden

Decisions

DoesFRCivP

(or statute)conflict with state

practice

Only oneplausible

interpretation?

Adopt that

interp.Apply Fed

Yes

NoWhich interest is more

important

Apply Both

Fed

State

Interpret Federal rule broadly to accomplish important federal goals

(Finding a conflict)

Interpret Federal rule narrowly to avoid impairing important state

interests (Finding no conflict)

Apply State=

IsFRCivP

(or statute)constitutional

?

Does it pass

traditional tests

UnconstitutionalConstitutional

No

YesDoes itexcessively

interfere withstate regulation of

primaryconduct

Yes

No

Is particularFRCivP arguably

procedural?

Is particularFRCivP arguably

procedural?

Give deference to prima facie judgment of Supreme Court, Congress, and the Rules

Advisory Committee that rule is procedural.

Now decide

Yes No

Yes No