Gazing into the crystal ball: reflections on the standards state judges should use to ascertain federal law.

Author:Zeigler, Donald H.


Federal and state courts routinely interpret and apply each other's law. Federal courts must apply state law under the Rules of Decision Act(1) as construed in Erie Railroad Co. v. Tompkins(2) and its progeny. State courts must apply federal law under the Supremacy Clause.(3) Federal courts use a single approach for ascertaining state law in cases in which it applies: they decide issues of state law the way they think the state supreme court would decide them.(4) State courts, by contrast, do not use a uniform approach for ascertaining federal law. Instead, they use a wide variety of approaches.

Virtually all state courts agree that they are bound by U.S. Supreme Court(5) decisions interpreting federal law. When the Supreme Court has not spoken, however, there is little agreement on how to proceed. State courts vary greatly in the weight they give to lower federal court decisions: some consider themselves bound by such decisions; others ignore them entirely. Most state courts take a position somewhere between these two extremes. State courts generally give only brief, conclusory reasons for the approaches they follow. Courts deciding that they are not bound by lower federal court decisions almost never go on to articulate or explain the standards they use to ascertain federal law. Scholarly treatment of this issue is similarly brief and conclusory.(6)

This Article fills the need for a comprehensive analysis of the standards that state courts use to ascertain federal law. I propose that state courts adopt a uniform approach for ascertaining federal law that is analogous to the approach the federal courts use in ascertaining state law: state courts should decide questions of federal law the way they think the Supreme Court would decide them. This approach would best further the goals of correct and uniform interpretation of federal law. As a corollary, I contend that categorical rules concerning the effect of lower federal court decisions are neither necessary nor appropriate. Instead, state courts should determine pragmatically what weight to give lower federal court decisions.(7)

Part I begins by explaining why the question of state court standards for ascertaining federal law is inherent in the basic governmental structure established by the Framers and the First Congress. It also offers some surmises about why the issue did not arise in the early years of the Republic. Part I then traces the myriad of approaches that state courts use to ascertain federal law and briefly discusses federal court opinion on the matter. It concludes by reviewing the policy reasons state and federal courts give for the diverse positions they take.

Part II makes the case for my proposal. It begins by exploring whether the Constitution or historical practice requires or precludes any particular approach to ascertaining federal law. It concludes that state courts are free to choose any approach they wish as long as it is not a subterfuge for ignoring federal law. Part II next identifies and discusses the goals that the standards should seek to achieve. It contends that the standards should help state courts interpret federal law correctly and help achieve national uniformity in the interpretation of that law. Finally, it explains why the approach I suggest would bring us closest to achieving those goals.

Part III explains how this proposal would apply in practice. If state judges are to decide issues of federal law the way they think the Supreme Court would decide them, these judges must have some idea of the process that the Supreme Court follows. Describing this process is not easy; there is no official handbook explaining it. Several judges and scholars have written about the art of judging,(8) yet the process remains mysterious. Part III discusses what Judge Frank Coffin calls "craft skills"(9)--that is, the day-to-day practices that the Supreme Court follows in applying the rules of stare decisis and statutory construction. It then offers some general suggestions to assist state judges in making predictions. Finally, Part III discusses five different situations that state judges routinely face in ascertaining federal law and makes specific suggestions as to how they should proceed.


    1. Early History

      The issue of what standards state courts should use to ascertain federal law is inherent in the governmental structure established by the Framers and the First Congress. Against the backdrop of the state courts, the Framers created a Supreme Court(10) and extended the new federal judicial power to, inter alia, all cases in law and equity arising under the Constitution, laws, and treaties of the United States.(11) During both the Constitutional Convention and the state ratification conventions that followed, delegates generally agreed that state courts could also decide issues of federal law.(12)

      When the First Congress created the lower federal courts(13) and gave them a portion of the subject matter jurisdiction allowed by Article III,(14) the stage was set for the issue to emerge. Two court systems existed, state and federal, both with power to hear and decide cases raising issues of federal law. The Supremacy Clause required state courts to follow federal law in cases in which it applied.(15) In time, the state courts would face issues of federal law that already had been decided by either the Supreme Court or lower federal courts. The questions became: What standards should state courts use to ascertain federal law? What effect should they give to decisions of the Supreme Court and the lower federal courts?

      Although these questions might have arisen soon after the country was formed, apparently no early cases addressed them.(16) Several factors may have kept these questions from surfacing. In the early days of the country, Congress enacted few federal statutes.(17) Thus, there were few federal statutory rights to enforce in state or federal court, and few issues of statutory interpretation on which state and federal courts might differ. In addition, the Supreme Court held in Barron v. Mayor of Baltimore(18) that the Bill of Rights applied only to the federal government and not to the states,(19) thus eliminating an important area in which federal and state courts might have disagreed as to the proper meaning of federal law.

      Although the First Congress created lower federal courts, it did not confer any general civil arising under jurisdiction on them.(20) Almost all civil cases arising under federal law had to be brought in state court.(21) Consequently, the lower federal courts had little opportunity to develop a body of decisions interpreting federal law except in those relatively rare instances in which Congress gave them subject matter jurisdiction.(22) The First Congress did confer almost all of the general criminal arising under jurisdiction on the lower federal courts,(23) and later Congresses routinely shared jurisdiction over federal statutory crimes with the state courts.(24) Although state courts might have considered how to ascertain federal law in such cases, it is unclear how often federal prosecutors actually proceeded in state court.(25)

      Several developments in the second half of the nineteenth century ensured that the issue addressed in this Article would finally capture judges' attention. The Civil War and Reconstruction fundamentally altered the balance of federal and state power. The federal government moved to consolidate its power and to expand national authority.(26) Congress protected federal rights against state infringement by passing the Thirteenth,(27) Fourteenth,(28) and Fifteenth Amendments,(29) and by enacting waves of enforcement legislation.(30) Congress finally conferred the general original civil arising under jurisdiction on the lower federal courts and made it concurrent with the state courts,(31) and the Supreme Court made it clear that Congress can require the state courts to hear both civil and criminal cases arising under federal law.(32) As the century drew to a close, Congress enacted significant regulatory legislation.(33)

      All of these developments combined to create the modern framework in which the question of what standard state judges should use to ascertain federal law was almost certain to arise on a regular basis. The state courts were bound to hear federal claims and to apply federal law in many instances. The grant of general original civil arising under jurisdiction to the lower federal courts allowed them to begin to develop a general body of decisional law construing federal enactments.(34) The steady stream of federal regulatory legislation also created many federal rights that could be enforced in either state or federal court.(35)

    2. State Court Approaches to Finding Federal Law

      State courts finally began to address the standards for ascertaining federal law at the turn of the century. Early decisions held that state court judges were bound by Supreme Court cases interpreting federal law.(36) The state courts promptly split on whether they were bound by lower federal court decisions interpreting federal law.(37) Discussions tended to be wholly conclusory. Courts simply stated that they were bound--or were not bound--and generally provided neither citation nor analysis.(38) State courts holding that they were not bound by lower federal court decisions gave no indication of how they would ascertain federal law.(39)

      Today, virtually all state courts agree that they are bound by Supreme Court decisions construing federal law,(40) but they agree on little else. The state courts take an extraordinary number of different positions on the "elusive" question of the effect of lower federal court decisions.(41) The positions fall on a spectrum ranging from "slavishly follow" to "totally disregard" and include just about every position imaginable in between.

      In the absence of Supreme Court precedent, some...

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