Intersystemic Statutory Interpretation: Methodology As .

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Document15/17/2011 5:53 PMAbbe R. GluckIntersystemic Statutory Interpretation:Methodology as “Law” and the Erie Doctrineabstract. Do the Erie Doctrine and its “reverse-Erie” mirror require state and federalcourts to apply one another’s statutory interpretation methodologies when they interpret oneanother’s statutes? Surprisingly, the courts have no consistent answer to this question—eventhough state and federal courts constantly interpret one another’s laws. What’s more, exploringthis application of Erie reveals that one of the most important jurisprudential questions aboutstatutory interpretation also remains entirely unresolved: namely, are the rules of statutoryinterpretation “law,” individual judicial philosophy, or something in between?This Article argues that many federal courts are getting the Erie question wrong—or atleast that they are unaware that the question exists in the first place. The Erie inquiry also makesclear that federal courts treat both state and federal statutory interpretation methodology asmuch less “lawlike” than they treat analogous interpretive principles, without acknowledging orjustifying the distinction. Federal courts routinely bypass state interpretive principles when theyinterpret state statutes, but almost always look to other state methodological principles,including state rules of contract interpretation, choice of law, and constitutional interpretation.Further, unlike in those other areas, the U.S. Supreme Court does not treat even its ownstatements about federal statutory interpretation principles as “law” and does not give themprecedential effect. This practice has licensed an interpretive freedom for state and lower federalcourts when those courts interpret federal statutes—a freedom that facilitates federal-lawdisuniformity that the Court generally does not tolerate in other contexts. This Article challengesthe notion that statutory interpretation is sufficiently different from other decisionmakingregimes to justify these Associate Professor of Law, Columbia Law School. Zeke Hill, Mallory Jensen,Dhawal Sharma, Peter Aronoff, Michelle Diamond, Jon Krois, and Richard Geo Sang Leeprovided excellent research assistance. Many thanks to Bill Eskridge, Robert Ahdieh, SamuelBray, Ariela Dubler, Richard Fallon, Meir Feder, Robert Ferguson, Barry Friedman, Katie Hall,Helen Hershkoff, Pam Karlan, Ben Kerschberg, Lance Liebman, Gillian Metzger, TrevorMorrison, Jonathan Remy Nash, Robert Post, Judith Resnik, David Shapiro, Peter Strauss,Adrian Vermeule, and Louise Weinberg; Josh Geltzer, Laura Safdie, Alexander Schwab, DanielWinik, and the other terrific editors at The Yale Law Journal; participants in workshops atColumbia, Emory, Seton Hall, Stanford, and Yale law schools and the Junior Faculty FederalCourts Workshop; and especially Henry Monaghan.1898

intersystemic statutory interpretationarticle contentsintroduction1901i. indeterminacy in statutory interpretation and federalism’sarchitecture of concurrent jurisdiction1907A. The Unresolved Legal Status of Federal Interpretive Methodology1. Methodology as “Rules of Thumb”2. Methodology as Federal Common Lawa. Comparisons to Federal Common-Lawmaking for ConstitutionalInterpretation3. Methodology as Something in Between190919121912B. Different Questions Raised by Statutory Interpretation in the StatesC. The Architecture of Concurrent Jurisdiction and the Erie Doctrine1. The Asymmetrical Structure of Concurrent Jurisdiction2. The Erie Doctrine1919192119211922ii. federal courts and state statutesA. Three Ways in Which State Statutes Come to Federal Court forInterpretationB. Diversity Cases1. Problem 1: The Tools that Courts Will Use To “Predict” State Law2. Problem 2: Mixing Federal and State Methodologya. Using Federal Methodologyb. Using Both Federal and State Methodology3. Problem 3: Conflicts Between State Courts and State-LegislatedInterpretive Rules4. Problem 4: Dynamic Statutory InterpretationC. Federal-Question Cases Requiring State Statutory Interpretation1. In the U.S. Supreme Court2. In the Circuit Courts3. Special Treatment for Constitutional Avoidancea. U.S. Supreme Court Origins of this Restrained Approachb. Are the Constitutional Cases Justifiably Different?4. Exception: Voluntary Application of State 4193619401942194519481953195619581899

the yale law journal12 0: 18 9 8iii. state courts and federal statutesA. State Courts Using Federal Methodology for Federal StatutesB. State Courts Using State Methodology for Federal StatutesC. Disuniformity of Federal Lawiv. methodological analogies and erieA. Analogous Jurisprudential Principles1. Analogies to Rules on Interpretation of Texts: Contracts, Wills, andTrusts2. Analogies to Other Ex Ante-Defined Reasoning Processes: Choice ofLaw, Stare Decisis, and Constitutional Law Frameworks3. Analogies to Burden-Allocation PrinciplesB. Applying the Erie Considerations to Statutory Interpretation1. The Contracts Argument: Statutory Interpretation and PrimaryConduct2. Statutory Interpretation Methodologies as Rules of Decision3. Statutory Interpretation, Federal Interests, and Federal JudgesC. A General Common Law of Statutory Interpretation?2 01 9851987v. intersystemic statutory interpretation1990conclusion19971900

intersystemic statutory interpretationintroductionHere is the puzzle: why do federal courts interpreting state statutesroutinely look to U.S. Supreme Court cases for the appropriate principles ofstatutory interpretation rather than citing the interpretive rules of the relevantstate? This, arguably, is where statutory interpretation theory should meet theErie doctrine. Erie, after all, requires federal courts to apply state law to statelegal questions.1 But federal courts do not seem to think of statutoryinterpretation methodology as “law” in the first place, much less as law subjectto Erie.To put the point more concretely: Assume that the only question in a diversity case before the SixthCircuit is how to interpret a Michigan tort statute. Assume also thatthe Michigan Supreme Court recently decided a case holding thatthe “rule against absurdities”—which directs courts not to construestatutes literally if doing so would bring about absurd results—should no longer be applied to Michigan laws. The federal courts,however, often apply that rule in interpreting federal statutes. Canthe federal court apply the rule against absurdities to the Michiganstatute? Now here is a twist: does the answer change if the exact same statelaw question is presented in federal court, not under the diversityjurisdiction, but instead embedded as part of a federal-questioncase?Despite decades of incessant talk about statutory interpretation, the federalcourts have no answers to these inquiries. Indeed, the entire area is somethingof a doctrinal mess. Neither the federal nor the state courts have any consistentor well-articulated approach to the question of whether they are required toapply one another’s interpretive methodologies to one another’s statutes.What’s more, this phenomenon has gone mostly unnoticed, or no one seems tocare.21.Stated more formally, “Erie is . . . a limitation on the federal court’s power to displace statelaw absent some relevant constitutional or statutory mandate.” Henry P. Monaghan, BookReview, 87 HARV. L. REV. 889, 892 (1974); see Erie R.R. v. Tompkins, 304 U.S. 64 (1938).2.For related work, see, for example, Anthony J. Bellia, Jr., State Courts and the Interpretation ofFederal Statutes, 59 VAND. L. REV. 1501 (2006), which details state court approaches to stateand federal statutory interpretation methodology during the Founding era; Wayne A.Logan, Erie and Federal Criminal Courts, 63 VAND. L. REV. 1243, 1254-55 (2010), which1901

the yale law journal12 0: 18 9 82 01 1And in fact, this Erie muddle makes apparent something even moreimportant about statutory interpretation in general: namely, that statutoryinterpretation’s most fundamental jurisprudential question—whether statutoryinterpretation methodology is “law,” individual judicial philosophy, orsomething in between—remains entirely unresolved. The U.S. Supreme Courtgenerally does not treat its statements about statutory interpretationmethodology as law. Five votes in agreement with respect to the interpretiveprinciples used to decide one case do not create a methodological precedentthat carries over to the next case, even where the same statute is beingconstrued. In contrast, some state courts do treat their rules of statutoryinterpretation like any other substantive legal doctrine,3 a development thatfurther complicates any understanding about the legal status of statutoryinterpretation methodology.Interestingly, at least some of this uncertainty in statutory interpretationderives from the same kinds of jurisprudential ambiguities that motivated Erieitself. Erie culminated a sea change in how judges view law; it reflected a movefrom the idea of a body of “natural,” general, or universal legal principles to amore positivistic understanding of law as something specific, a policy choicelinked to a particular jurisdiction, and a choice that can vary from one3.discusses federal court application of state criminal laws as first-order questions in FourthAmendment cases and the relevance of Erie in that context; Alex B. Long, “If the TrainShould Jump the Track . . .”: Divergent Interpretations of State and Federal EmploymentDiscrimination Statutes, 40 GA. L. REV. 469 (2006), which examines state interpretation ofparallel or “borrowed” federal employment statutes; and Donald H. Zeigler, Gazing into theCrystal Ball: Reflections on the Standards State Judges Should Use To Ascertain Federal Law,40 WM. & MARY L. REV. 1143, 1173-76 (1999), which shows how state courts interpretfederal statutes independently from federal-court precedents. See also Curtis A. Bradley, TheCharming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role ofInternational Law, 86 GEO. L.J. 479, 534-36 (1997) (questioning whether states must applythe Charming Betsy canon of interpretation); Kevin M. Clermont, Reverse-Erie, 82 NOTREDAME L. REV. 1 (2006) (“[R]everse-Erie is the critical missing piece in the big puzzle of therelationship between state and federal law.”); Michael C. Dorf, Prediction and the Rule ofLaw, 42 UCLA L. REV. 651 (1995) (exploring the “prediction” model of lower-courtdecisionmaking); cf. Paul J. Katz, Standing in Good Stead: State Courts, Federal StandingDoctrine, and the Reverse-Erie Analysis, 99 NW. U. L. REV. 1315, 1333-37 (2005) (describinghow, in the special context of the Federal Employers’ Liability Act, the Court has“provid[ed] the most extensive application of reverse-Erie principles”). An importantexception is Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory InterpretationMethodology?, 96 GEO. L.J. 1863 (2008), which directly addresses the Court’s failure to givestatutory interpretation methodology stare decisis effect.I detail these developments in Abbe R. Gluck, The States as Laboratories of StatutoryInterpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750(2010).1902

intersystemic statutory interpretationjurisdiction to another.4 But in the context of statutory interpretation, Erie’sjurisprudential impact has not been thoroughgoing.Applying the Erie doctrine to statutory interpretation brings into focusthese open questions about the legal status of methodology. Erie requiresfederal courts to consider whether a state legal principle is a “rule of decision”and, if it is, to apply that state principle in the absence of governing federallaw.5 And so we need to understand what statutory interpretation methodologyis and how it affects cases.6 In the opposite situation, often loosely called“reverse-Erie”—when state courts interpret federal law—the inquiry is slightlydifferent and implicates the Supremacy Clause: state courts must ask whetherthere is any federal “law” on point that binds them.7 And so, there, we need toknow whether there is, could be, or should be a federal common law ofstatutory interpretation, compulsory under the Supremacy Clause, to controlstate courts’ methodological choices when they construe federal statutes.This Article examines a decade’s worth of state and federal cases in whichthe courts interpreted one another’s statutes,8 and it submits that many courts,including the U.S. Supreme Court, are getting the Erie question wrong. Or, ata minimum, they are not sufficiently aware that the question exists in the firstplace. Consider some of the doctrinal inconsistencies that we shall identify: indiversity cases, federal courts sometimes apply federal statutory interpretationprinciples to state statutes but sometimes apply state principles, and they4. Guar. Trust Co. v. York, 326 U.S. 99, 101 (1945) (“Erie . . . did not merely overrule avenerable case. It overruled a particular way of looking at law . . . .”). This shift is, of course,but one aspect of the complicated Erie story, cf. EDWARD A. PURCELL, JR., BRANDEIS AND THEPROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERALCOURTS IN TWENTIETH-CENTURY AMERICA 3 (2000) (arguing that Erie’s “‘philosophical’content” has been “overemphasized” and that the decision’s “more vital concern lay inbroader ideas about judicial lawmaking and separation of powers”), and somecommentators have argued that the link between Erie and a new legal positivism is greatlyoverstated, see Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism,84 VA. L. REV. 673 (1998).See Erie, 304 U.S. at 78. Erie construed the Rules of Decision Act, the federal statute thatrequires that “[t]he laws of the several states . . . shall be regarded as rules of decision in civilactions in the courts of the United States, in cases where they apply.” 28 U.S.C. § 1652(2006).The Erie inquiry furthers, but may not necessarily resolve, these inquiries. For example, aconclusion that Erie does not require the application of local methodology to local statuteswould mean that statutory interpretation is not a “rule of decision” but not necessarily thatit is not “law.” Many legal doctrines that unquestionably are law—such as rules ofprocedure—fall outside of Erie.See Clermont, supra note 2, at 20.See infra Part II for elaboration of this Article’s case-selection methodology.1903

the yale law journal12 0: 18 9 82 01 1almost never explain the basis for their choices. On the other hand, when statestatutes are presented as part of federal-question cases, many federal courtsroutinely neglect state interpretive principles. But in many of these federalquestion cases, the state statutory questions are analytically distinct from thefederal-law issues, and so there is no reason that they should be interpreted in amanner that differs from how they would be interpreted in diversity cases.9In still other cases, federal courts diverge from state practice for completelydifferent reasons apparently grounded in federalism concerns, most notably thenotion that they are not “equal” interpreters of state law. They often refuse, forexample, to apply widely accepted statutory interpretation doctrines—mostconspicuously, the canon of constitutional avoidance—to state-law questions,despite the fact that federal courts often apply those doctrines in federal casesand despite the fact that state courts themselves apply those canons in theirown cases.The other side looks very different. In federal statutory interpretation casesheard in state courts, the state courts aggressively assert their independent rolein interpreting federal statutes. But this, too, raises concerns. Without a federal“law” of statutory interpretation handed down by the U.S. Supreme Court(which would bind state courts under the Supremacy Clause), most statecourts feel free to select from a wide array of interpretive principles. Theproblem is that the regional federal courts of appeals are in the same position:they too must interpret federal statutes with only loose methodologicalguidance from the U.S. Supreme Court. As a result, state and federal courtswithin the same regional circuit can reach different interpretations of the samefederal statute based on different chosen rules of interpretation. And becausethe state supreme courts are coordinate (not inferior) to the federal courts ofappeals on matters of federal law, state courts have no obligation to harmonizetheir interpretive choices with the decisions of their local federal courts ofappeals.10 The consequence? Intentional disuniformity—different caseoutcomes—among geographically linked courts on identical federal statutoryquestions.9.10.I do not mean to include in this reference to state statutes interpreted in federal-questioncases the supplemental jurisdiction cases, which are more straightforward. Rather, I meancases such as federal 42 U.S.C. § 1983 claims, alleging that a state official acted under colorof state law, but in which there is a preliminary dispute about what the state statute actuallysays before the federal court can determine the federal-law question. See, e.g., Dean v.Byerley, 354 F.3d 540 (6th Cir. 2004); infra notes 167-172 and accompanying text (discussingDean).See Colin E. Wrabley, Applying Federal Court of Appeals’ Precedent: Contrasting Approaches toApplying Court of Appeals’ Federal Law Holdings and Erie State Law Predictions, 3 SETON HALLCIRCUIT REV. 1, 18 (2006); Zeigler, supra note 2, at 1173.1904

intersystemic statutory interpretationCourts are usually far more careful than this. At a minimum, courtstypically take pains to explain the basis for diverging from standard practice orfor proceeding inconsistently. It is difficult to imagine, for example, theSeventh Circuit, in a Wisconsin contract-law case, ignoring the fact thatWisconsin has adopted a particular version of the parol evidence rule. And yetwe routinely see analogous principles—for example, how a state treats extrinsicevidence such as legislative history—overlooked without justification whenfederal courts interpret state statutes.It is possible that this practice is not the result of mere judicial oversight.Federal courts may be deliberately resisting a more lawlike approach tostatutory interpretation methodology, perhaps to retain decisionmakingflexibility, or perhaps because they cannot agree on the governing principlesthemselves. At the same time, however, even if the federal courts areconsciously avoiding a more lawlike conceptualization of their own interpretiveprinciples, that does not fully explain why federal courts would neverthelessnot follow state-court practice when they are interpreting state statutes. It maybe just as likely that federal courts are simply not thinking about statutoryinterpretation in the same way in which they think about other types ofinterpretive and decisionmaking methodologies.What follows, then, is an essential question: is statutory interpretationreally all that different from other methodological principles? Consider notonly contract interpretation but also other analogous interpretive ordecisionmaking regimes such as trust interpretation, choice of law, and evenspecific doctrinal frameworks of constitutional law (such as the tiers ofscrutiny).11 Each of those areas shares similar characteristics with statutoryinterpretation methodology, but in those areas, the courts do recognize that theoperative decisionmaking principles differ across state and federal systems, docarefully analyze them under the Erie doctrine when applied to state law, anddo treat them as “real” law on the federal side. This Article submits thatstatutory interpretation should be no different.The discussion proceeds in five Parts. Part I outlines the assumptions of thecurrent system, including a summary of the principles underlying the Eriedoctr

intersystemic statutory interpretation 1901 introduction Here is the puzzle: why do federal courts interpreting state statutes routinely look to U.S. Supreme Court cases for the appropriate principles of

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