Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process

There is a sense of "deja vu" to the vision of a uniform body of state procedural law applicable in every state court throughout the nation. "Swift v. Tysons'" dream of a nationally uniform body of state substantive common law that mirrored an evolving body of uniform federal common law never materialized because state courts refused to defer to federal common law, which was applied only in federal court. Swift itself was overturned in 1938 by the Supreme Court's ruling in "Erie Railroad v. Tompkins" that federal courts must defer to the substantive lawmaking authority of state courts. But almost simultaneously with the demise of "Swift," the dream of uniform state common law was reincarnated into a vision of uniform state procedural law through the enactment of the Rules Enabling Act (REA) and the adoption of the Federal Rules of Civil Procedure.