Recent changes to federal procedure have alarmed state governments. In a series of cases decided in the past ten years, the U.S. Supreme Court has restructured basic procedural doctrines on personal jurisdiction, class actions, and pleading, among others. To signal their concern, dozens of state attorneys general have written amicus briefs in twelve out of the eighteen major procedure cases decided by the Supreme Court since 2007, demanding that federal courts refrain from remaking longstanding principles. Some state legislatures have threatened to invalidate procedural decisions through legislation, and even state courts have joined the effort—one state judge claimed that a recent class action decision was “contrary to every legal principle in the book, and I don’t care if the U.S. Supreme Court wrote it or not. It’s wrong.” Repeatedly, the states have expressed “alarm,” argued that some procedural changes are “deeply insulting,” and called some decisions “absurd,” even though many cases seemingly had no effect on state courts whatsoever. Why exactly are the states so interested in federal procedure?

This Article presents the first comprehensive study of the relationship between the states and federal procedure. This Article offers three contributions. First, it catalogs the states’ wide array of interventions into federal procedure to show that the states have a strong interest in recent procedural changes. Second, it builds a typology that explores the multifaceted ways in which federal procedure does in fact affect the states. This review exposes federal-state cross-currents rooted in legal, economic, and political dynamics. Surprisingly, although Democrats and Republicans are squarely divided on procedural issues, this Article finds that the states’ institutional interest in procedure trumps political ideologies; most state amicus briefs in this context have involved bipartisan coalitions.
Third, this Article draws upon a wealth of federalism and administrative law scholarship to argue that scholars and federal actors should welcome the states’ involvement in federal procedure. Giving the states a role would provide rich epistemic benefits, promote democratic values, and improve transparency at the Advisory Committee.

* Harry A. Bigelow Teaching Fellow and Lecturer in Law, University of Chicago Law School.