1. Basic Flow Chart

2. What is the source of the Federal Practice Judge Made Rule Constitution FRCivP Analysis Other (Erie) Analysis Const’l Analysis Statute Analysis FRCivP Fed Stat

3. Constitutional Analysis

4. Constitution Based Federal Practice Is there a conflict with State Rule? Apply Both Apply Federal Yes No

5. Statutory Analysis

6. Statutory Federal Practice Is there a conflict with State Rule? Apply Both Apply Federal Yes No Is Statute Constitu -tional? Apply State Yes No

7. FRCivP Analysis

8. Does FRCivP conflict with State rule ? Apply Both Apply FRCivP Yes No Is it constitutional ? Apply State Yes No Is it arguably procedural ? No Yes

9. Alternate FRCivP Analysis

10. Does FRCivP conflict with State rule ? Apply Both Apply FRCivP Yes No Is it constitutional ? Apply State Yes No Is it arguably procedural ? No Yes Is there a judge-made practice No Yes Go to Erie

11. Erie (Judge Made Rule) Analysis

12. Does practice conflict with state rule ? Apply Both Apply Fed practice Yes No Will applying fed practice lead to: 1. Forum Shopping 2. Inequitable Administration Apply State No Yes

13. Erie (Judge Made Rule) Analysis 2d edition

14. Does practice conflict with state rule ? Apply Both Apply Fed practice Yes No Will applying fed practice lead to: 1. Forum Shopping 2. Inequitable Administration Apply State No Yes But also discuss: 3. State v. Federal Interests 4. Interference with state’s regulation of primary conduct

15. More Sophisticated Flow Chart

16. A Closer Look Inside Hidden Decisions

17. Does FRCivP (or statute) conflict with state practice

18. Only one plausible interpretation ? Adopt that interp. Apply Fed Yes No Which interest is more importan t Apply Both Fed State Interpret Federal rule broadly to accomplish important federal goals (Finding a conflict) Interpret Federal rule narrowly to avoid impairing important state interests (Finding no conflict) Apply State =

19. Is FRCivP (or statute) constitutional ?

20. Does it pass traditional tests Unconstitutional Constitutional No Yes Does it excessively interfere with state regulation of primary conduct Yes No

21. Is particular FRCivP arguably procedural ?

22. Is particular FRCivP arguably procedural ? Give deference to prima facie judgment of Supreme Court, Congress, and the Rules Advisory Committee that rule is procedural. Now decide Yes No Yes No