GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2010

Status

Accepted

Abstract

The Supreme Court in Shady Grove Orthopedic Associates v. Allstate Ins. Co., a diversity-of-citizenship case, held that a state statute prohibiting “maintenance” of a class action to enforce a penalty clashed with the terms of Federal Rule of Civil Procedure 23 that authorizes “maintenance” of a class suits meeting the requirements of the rule. Writing for himself and three others Justices, Justice Scalia refused to consider the history of the state provision and merely declared that its “clear text” established the conflict. He failed to consider the fact that the word “maintain” is ambiguous and that there is reason to believe that that word means one thing in the statute and another in the rule. The result of the decision is that a case that could not be tried in a state court was to be tried in a federal court under diversity jurisdiction, leading to violation of the Rules Enabling Act and serious forum shopping.

GW Paper Series

GWU Law School Public Law Research Paper No. 515; GWU Legal Studies Research Paper No. 515

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