The Oklahoma Bar Journal April 2026

principles, once federal law occu pies a field, even complementary state legislation is impermissible. 36 The reasoning in the Supreme Court’s preemption cases is this: if a given federal scheme represents a considered judgment about how the relevant regulatory framework should operate, and state variations – even well-intentioned ones – introduce dissonance into this uniform system. 37 THE FIELD IS OCCUPIED: HOW BERK COULD DISPLACE ANTI-SLAPPS This, then, brings us to state anti-SLAPP statutes and to what Berk quietly (and likely) telegraphed about their fate in diversity jurisdiction cases. This is likely true for three reasons. First , the Supreme Court has long held that its reasoning in its opinions – the ratio decidendi – applies beyond the immediate facts of the case at hand. It is that reason-for-the-rule that is binding in other cases. 38 Second , nearly every federal court of appeals, following Justice Antonin Scalia’s lead, holds that the mode of analysis announced in Supreme Court opinions is binding. 39 Third , some circuits, especially the 10th Circuit, hold that they are bound by Supreme Court dicta just as much as the holding itself. 40 Thus, altogether, whichever way one dices Berk – whether applying its ratio decidendi , its mode of analysis or what some would consider its dicta – in the 10th Circuit (and its attendant lower courts) at least, the case applies beyond the affidavit of merit. Enter anti-SLAPP statutes. Anti-SLAPP laws – statutes designed to protect defendants from “strategic lawsuits against public participation” – have proliferated across the states. 41

plaintiff to his proof: a motion for summary judgment.” 30 Here is the crucial point for the reader: The court said the Federal Rules of Civil Procedure already occupy the field. 31 Those rules already answered the question of how and when a plaintiff can be put to their proof. Rule 8 defines pleading sufficiency. Rule 12 defines motions to dismiss, which are allegations-based dismissal mechanisms. Rule 56, in turn, defines summary judgment, which is an evidence-based dis missal motion. 32 Thus, a state law that purports to impose a different standard – whether styled as a pleading requirement, an eviden tiary threshold or a gatekeeping mechanism – necessarily conflicts with this comprehensive federal procedural scheme. 33 The Supreme Court invoked Burlington Northern R. Co. v. Woods 34 for the proposition that a federal rule can displace state law when it “occupies the statute’s field of operation.” 35 This language of field occupation is important. Under longstanding federal preemption

While Rule 8 requires only a state ment of the claim, Delaware’s law demands evidence at the pleading stage – “a prima facie evidentiary requirement,” as the Delaware courts describe it. 26 Thus, Berk found that the conflict was direct and real. 27 What makes Berk so significant is what the court said about the nature of this conflict and the impossibility of accommodation. The defendants tried a workaround: They proposed to the Supreme Court rewriting Delaware’s law to function not as “a pleading requirement” but as a “free-floating evidentiary require ment” that could justify early dis missal. 28 But the Supreme Court’s response was a firm no. Even if one accepted such “creative license” with state law, the court reasoned that “there would be no way to enforce such a require ment” under the Federal Rules of Civil Procedure. 29 The defen dants conceded that the absence of an affidavit is not grounds for dismissal under Rule 12(b)(6). What’s more, Federal Rule of Civil Procedure 56 already prescribes the “mechanism for putting a

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

42 | APRIL 2026

THE OKLAHOMA BAR JOURNAL