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89 Tul. L. Rev. 307 (2014-2015)

handle is hein.journals/tulr89 and id is 335 raw text is: TULANE LAW REVIEW VOL. 89 DECEMBER 2014 No. 2 Civil-izing Federalism Brooke D. Coleman* When Chief Justice Roberts and Justice Alto joined the United States Supreme Court most commentators predicted it would become more conservative. Indeed many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would if anything, become more robust under the new chief To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines But there are some important counterexamples in the Courts federalism junsprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead the liberal wing of the Court generally votes in favor of robust states' rights, while the conservative wing votes to impose defendant-frendly federal rules in civil litigation or to require plaintiffs toproceedin relatively hostile federal courts. This Article is the t-rst to focus on the Robem Courts treaunent of federalism in civil procedure cases and the consequences for private civil litigation. It argues that the apparent disconnect between individual Justices' stances in procedural cases and their federalism commiments is due, at least in part, to the Justices' understandings of the puiposes for, and effectiveness of, the federal civil litigation system. By examining the Justices'nanatives about civil lingation, the Article demonstrates that even as they invoke the language offederaism, the Justices'positions in procedural cases correlate with the ciil litigation interests they seek to protect business interests for the conservative Justices and access to justice for the liberal Justices. Ths Artcle concludes that these interests, and not federalism commitments, are far better predictors of how the Justices will decide procedural cases. Yet, the Article argues, the Court should more closely adhere to traditional conservative federalism principles in this context. Procedumljurisprudence that is deferential to states inprivate civil litigation is likely to create greater access to the courts and thus a more just civil litigation system. * © 2014 Brooke D. Coleman. Associate Professor of Law, Seattle University School of Law. Many thanks to Steven Baicker-McKee, Robert Chang, Diane Dick, Scott Dodson, Charlotte Garden, David Gartner, Lily Kahng, Michael Kaufman, Sara Rankin, Briana Rosenbaum, Norman Spaulding, Jeff Stempel, Suja Thomas, and Mark Tushnet who commented on early drafts. Thanks also to the Seventh Annual Federal Courts Junior Faculty Forum and the Rocky Mountain Junior Faculty Forum for the insightful comments received there. Brett Carnahan and Constance Lockleav provided able research assistance.

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