Washington Law Review

Article

Erie SLAPP Back

October 01, 2020 | 95 Wash. L. Rev. 1253

Abstract

Dozens of states have enacted anti-Strategic Lawsuits Against Public Participation (SLAPP) laws to counter SLAPP suits, or lawsuits filed to silence a defendant who has spoken out against a plaintiff. The primary goal of a SLAPP suit is not to win on the merits, but rather to discourage the defendant from exercising their right to free speech by threatening excessively expensive litigation. State anti-SLAPP laws provide for special motions to dismiss, discovery limitations, and fee shifting, all designed to allow a defendant to expeditiously dispose of the SLAPP suit before engaging in costly discovery.

This Article discusses the development of state anti-SLAPP laws and the evolution of the Erie doctrine through the Shady Grove decision, ultimately examining how lower courts have struggled to make sense of Shady Grove in the context of state anti-SLAPP special motions to dismiss. This Article then discusses the various theoretical solutions that have been offered for this dilemma, concluding that the conflict between state anti-SLAPP laws and the Federal Rules of Civil Procedure is unavoidable and irreconcilable under the Rules Enabling Act and Erie and its progeny. Based on this analysis, this Article concludes that federal courts sitting in diversity cannot apply state anti-SLAPP laws. The only mechanism for accomplishing the specifically defined purpose of state anti-SLAPP laws in federal court is for the Congress to adopt a federal anti-SLAPP law that would supplement the operation of the Federal Rules of Civil Procedure.

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