September 22, 2010

"Intersystemic Statutory Interpretation: Methodology as 'Law' and the Erie Doctrine"

Abbe Gluck has posted this draft on SSRN (forthcoming, Yale Law Journal). Here is the abstract:

    This Article is the first to examine the intersection of statutory interpretation methodology and the Erie doctrine, and explores the following question: Why do federal courts interpreting state statutes routinely look to U.S. Supreme Court cases for the appropriate rules of statutory interpretation rather than consulting the interpretive rules of the relevant state? Erie, after all, requires federal courts to apply state legal principles to state-law questions.

    Whereas federal courts have long applied other state-created decision-making frameworks in Erie cases -- e.g., state principles of contract interpretation, state burdens of proof, choice-of-law regimes, etc. -- statutory interpretation methodology has somehow remained off the Erie radar. This omission has caused doctrinal disarray that, despite being prevalent, has gone mostly unnoticed. Consider the inconsistencies this Article identifies: In diversity cases, federal courts sometimes apply state interpretive methodology to state statutes, but sometimes apply federal methodology, and almost never explain the basis of the choice; on the other hand, when state statutes are presented in cases arising under the federal-question jurisdiction, many federal courts ignore state interpretive principles entirely, no matter how separate the state statutory question is; and, in some of these cases, federal courts don’t apply either state or federal methodology, often refusing, for example, to apply the canon of constitutional avoidance to state law questions (even if the state courts would apply it themselves) on the ground that federal courts are not competent to interpret state law.

    So, too, in the "reverse-Erie" context (when state courts interpret federal law), state courts remain divided as to whether federal statutory interpretation principles are “real law” that binds state courts under the Supremacy Clause. Here, as well, there are other interpretive analogues that courts treat entirely differently from how they treat statutory interpretation methodology: E.g., federal contract and trust interpretation, even various constitutional-law frameworks -- all of which federal and state courts alike treat as legitimate federal common law that binds them in federal cases. In the statutory interpretation context, however, even the U.S. Supreme Court does not treat its own methodological statements as binding "law." As a result, most state supreme courts feel free to select whatever interpretive principles they choose to construe federal statutes, a practice that sometimes leads to state and federal courts, in the same city, construing the same federal statute to mean different things.

    This Article submits that many courts, including the U.S. Supreme Court, are getting these cases wrong -- but doing so in a way that opens the door to new and important theoretical questions about statutory interpretation. Viewing statutory interpretation through the lens of Erie and the Supremacy Clause requires us to ask why, despite all the academic and judicial talk about statutory interpretation, the legal status of interpretive methodology remains so unresolved. Are the rules of statutory interpretation law, individual judicial philosophy, or something in between? The Erie lens also underscores that there is a large world of statutory interpretation beyond the U.S. Supreme Court and that, indeed, much of it is now an intersystemic exercise. Inattention to that fact has not only enabled the doctrinal incoherence that this Article aims to correct, but also has prevented the benefits of "dialectical federalism" -- benefits long extolled in other contexts in which state and federal courts intersect -- from enriching and informing statutory interpretation theory and practice.

Posted by Rick Hasen at September 22, 2010 07:48 AM