Comment   |   Volume 166, Issue 2

Anti‐SLAPP Statutes and the Federal Rules: Why Preemption Analysis Shows they Should Apply in Federal Diversity Suits

By
166 U. Pa. L. Rev. 547 (2018)

January 2018












In an effort to protect the exercise of free speech, many states have enacted “anti‐SLAPP” statutes—which provide special motions making the dismissal of meritless defamation claims quick and easy. In doing so, these state statutes help protect speakers against abusive litigation meant to deter speech. However, because these statutes use procedure to protect what states view as important rights, their operation in federal diversity cases raises vexing Rules Enabling Act questions. Some federal circuit courts have taken the view that the substantive ends of anti‐SLAPP statutes mean that their protections should apply in federal court. But other federal circuit opinions argue that the Federal Rules of Civil Procedure provide a closed universe of dispositive motions, precluding the availability of anti‐SLAPP motions to federal defendants.

To address the anti‐SLAPP problem, this Comment advocates adopting a proposal of looking at Rules Enabling Act questions as akin to preemption analysis. In other words, deciding whether the Federal Rules prevent the operation of a state provision in federal court means asking if the state provision conflicts with federal policy. Here, state anti‐SLAPP statutes are not designed to promote the efficiency of federal litigation—the purpose served by Rules 12(b)(6) and 56 motions. Instead, anti‐SLAPP motions provide specific protections against strike suits in certain, state‐created causes of action. Likewise, anti‐SLAPP statutes do not transgress broader federal policies. And failure to apply anti‐SLAPP statutes in federal court would raise troubling federalism concerns. Thus, anti‐SLAPP statutes should apply in federal diversity proceedings.

Anti‐SLAPP Statutes and the Federal Rules: Why Preemption Analysis Shows they Should Apply in Federal Diversity Suits - PennLawReview.com

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