An Important Class Issue The High Court Left Unresolved

Law360 (February 19, 2019, 12:31 PM EST) -- It is not uncommon for there to be tension between the Federal Rules of Civil Procedure and the Constitution. But it is highly uncommon — if not unprecedented — for courts to allow the former to trump the latter. Indeed, both the Rules Enabling Act and the rules themselves expressly require just the opposite.[1]

Put simply, while the U.S. Supreme Court can craft “general rules of practice and procedure,”[2] those rules cannot — except, perhaps, in the most incidental ways — alter a party’s substantive rights or expand a court’s subject matter jurisdiction.[3]

Two circuit courts have recently suggested otherwise, however,...

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