There is bipartisan support for a federal anti-SLAPP law, and a simple way for Congress to address the issue.
On Tuesday, the Supreme Court decided Berk v. Choy, a unanimous ruling (except for one eccentric concurring opinion by Justice Ketanji Brown Jackson) that turned on a point of federal civil procedure. But it shouldn’t be the last word on the topic.
Berk involved a common species of state law: a Delaware law that aims to prevent the filing of medical-malpractice lawsuits unless the plaintiff can get an affidavit from a doctor attesting that the suit has merit. While a med-mal plaintiffs’ firm of any size won’t have much trouble keeping a stable of doctors on hand to attest to just about anything, these laws do impose additional costs on med-mal suits and deter the most frivolous ones, especially those filed by lawyers who aren’t regular players in the field. The means by which the Delaware suit operates in Delaware court is to bar the suit from being filed or docketed without either the affidavit or a request for a single 60-day extension to file one (a provision that allows half-baked cases to be filed just before the statute of limitations runs out). In either event, the defendant does not even need to respond to the complaint until after the affidavit of merit has been filed.
But sometimes, lawsuits that would normally be brought under state law in state court end up in federal court, typically because the suit is between citizens of different states (what’s known as diversity jurisdiction). Before 1938, these cases would be decided under federal law — which was problematic because Congress hasn’t passed, and doesn’t have the constitutional power to pass, laws regarding medical malpractice and the dozens of other kinds of tort, property, and contract lawsuits that are typically handled by state courts under state law. So the federal courts, with no democratic sanction whatsoever, had to invent their own “federal common law.” That ended with the landmark 1938 decision in Erie Railroad Co. v. Tompkins, which ruled that state law still governs suits brought to federal court via diversity jurisdiction (suits under actual federal laws can already be filed in federal court). But wait! This is lawyers’ work, so nothing is that simple. Congress has passed laws (including the Rules Enabling Act, which empowers federal courts to enact procedural rules) regarding procedure in federal court. So federal law still governs procedural questions in diversity cases, while state law governs the substantive law. Unsurprisingly, this has generated a whole body of contested law regarding what counts as substantive and what counts as procedural. As Justice Amy Coney Barrett’s opinion in Berk observed, the basic test is that “a state law is substantive if (1) it is outcome determinative, and (2) failing to apply it in federal court would promote forum shopping and the inequitable administration of the law.”
One of the key elements of federal civil procedure is the rules for what a complaint needs to include. Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that [the plaintiff] is entitled to relief.” Rule 9 requires particular facts to be alleged to support certain kinds of claims, such as fraud. Rule 12 allows for motions to dismiss a complaint, and it provides rules for what a court can consider (usually, just what facts are in the complaint, its exhibits, or in documents incorporated in it) and how (i.e., courts dismiss a case if its facts, assuming they are true as alleged, would not support a legal claim for relief). A case that fails because the evidence is insufficient is governed by a separate process, summary judgment, that is governed by a separate rule (Rule 56) and that typically is made only after the parties have finished discovery — a process that can be very lengthy and expensive.
The Court in Berk concluded that the Delaware law was procedural, not substantive, because it created a process up front to throw out suits before discovery for a basis not found in Rule 12:
By specifying what information about the merits is required in the “pleading,” Rule 8 excludes the possibility of requiring even more information on the same topic—whether in the “pleading” itself or on a separate sheet of paper attached to it. . . . Rule 8 addresses what information a plaintiff must provide about the merits of his claim at the outset of litigation. [The Delaware law] addresses the same issue—and in doing so, imposes a different standard. [Quotations and citations omitted.]
Justice Jackson, writing alone, reached the same conclusion, but by means of the idiosyncratic argument that the Delaware law conflicts not with federal pleading rules but with federal filing rules, because it “answers the threshold question of what is required to start a civil action for medical malpractice under Delaware law.” This is unduly literal-minded.
Anyway, Berk is sensible enough as an application of current federal law, which is why it was unanimous. But as a policy matter, it is also bad news for tort-reform efforts such as the medical-malpractice law of Delaware and many other states. And it has implications for other protections against abusive lawsuits, as well. Thirty-five states and the District of Columbia have anti-SLAPP laws (SLAPP being an acronym for Strategic Lawsuit Against Public Participation) that provide for an early dismissal of meritless cases targeting speech. (National Review relied on D.C.’s anti-SLAPP law in obtaining dismissal of Michael Mann’s long-running libel case in D.C. court, but the delay in getting that ruling caused a great deal of legal expense.) There is, however, a long-running circuit split on whether anti-SLAPP laws apply in federal court — and Berk is likely to strengthen arguments against doing so.
Berk, however, is not a constitutional ruling; it can be changed by Congress. There is bipartisan support for a federal anti-SLAPP law, and in that area as well as in areas such as medical malpractice, the simplest way for Congress to address the issue would simply be to provide that any grounds for dismissal of a specific type of lawsuit before discovery that would be available in state court should also be available in federal court — a rule that would avoid displacing state law and instead ensure its uniform application. It is also possible that states could rework some of their tort-reform laws to incorporate things like the consultation of a doctor who can provide an affidavit of merit into the substantive elements of proof of the claim. That, however, is likely to be a more cumbersome way of approaching the topic, which would be bound to generate further litigation.