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Article:

Olin Guy Wellborn III, The Federal Rules of Evidence and the Application of State Law in Federal Courts, 55 TEXAS L. REV. 371 (1976).

Professor Wellborn observes that some recent diversity cases applying the Federal Rules of Evidence—in particular, the basic rules of relevancy—indicate a need for careful analysis to determine the appropriate roles of federal and state law in ruling on offers of proof.  He points out that many state statutes and decisions on relevancy constitute substantive as well as procedural or evidentiary determinations.  In light of these two aspects of state evidence rules, Professor Wellborn offers a test to determine when a Federal Rule of Evidence should not be applied to supplant state law.  Because the Federal Rules of Evidence were enacted directly by Congress, the Rules Enabling Act of 1934 does not govern them; nevertheless, Professor Wellborn argues, the history of Congress’ role in the promulgation of the Rules indicates that the prohibition in the Enabling Act against rules that “abridge, enlarge or modify any substantive right” remains an appropriate guidepost for construing and applying the Rules when they contradict state law.  Professor Wellborn offers analyses of a number of cases to illustrate the application of the test.  Last, he extends his analysis to cases presenting evidence problems that require choices between the laws of different states as well as between federal and state rules of decision.