Interjurisdictional enforcement of rights in a post-Erie world.

• Author: Schapiro, Robert A.
• Position: Dual Enforcement of Constitutional Norms

The United States may have emerged as the first modern federation, (1) but federalism has since been widely copied elsewhere. (2) Federalism is no longer a political structure that is unique to the United States. An aspect of federalism in the United States that remains distinctive, however, is the existence of a fully developed dual court system. A national judiciary composed of trial and appellate courts co-exists with state judiciaries, which also have trial and appellate benches. Judges in the national courts are chosen by national bodies in accordance with national rules, and judges in state courts are chosen in each state in accordance with the state's rules. The existence of such parallel judicial structures is unusual among federalist nations. Most federalist systems rely on a single set of lower courts, commonly identified with the subnational units, to apply both national and subnational law. (3)

In view of the existence of parallel state and federal judicial tracks, the allocation of issues between state and federal courts becomes an important concern. The different structural features of state and federal courts in the United States magnifies the importance of the choice. Among other characteristics, the electoral accountability of most state, but not federal, judges may lead the state and federal courts to develop different perspectives on issues, particularly those relating to hotly contested matters of public policy. (4)

The existence of a dual court system creates the possibility of allocating cases based on the law at issue. Federal questions could be sent to federal court and state questions to state court, though of course cases raising both kinds of issues would pose allocational difficulties. Instead, in the United States, the jurisdictions of the state and federal courts overlap extensively. Issues of state law commonly arise in and are adjudicated by federal courts; issues of federal law commonly arise in and are adjudicated by state courts. Such intersystemic adjudication, by which I mean the interpretation by a court operating within one political system of laws of another political system, is pervasive.

This Article seeks to situate intersystemic adjudication within the larger framework of federalism in the United States. Federalism today is characterized by a sharing of state and federal power, rather than by a rigid division between state and federal authority. Dual federalism, the idea that the states and the national government each enjoy independent and largely autonomous spheres of authority, has given way to other visions of federalism that contemplate a greater sharing of power. (5) Elsewhere, I have developed the concept of "polyphonic federalism" to describe the appropriate understanding of federalism in the contemporary United States. (6) Polyphonic federalism understands the state and federal governments to be sources of power that are distinctive, but not mutually exclusive. State and federal governments serve as alternative mechanisms for accomplishing ends that legitimately lie within the prerogative of either system.

Although conceptions of federalism have changed over time, the basic goals of federalism have remained stable. One of the key purposes of federalism is to offer enhanced protection for individual rights. (7) This Article contends that intersystemic adjudication provides a way for state and federal courts to work together to safeguard important liberties.

Many scholars of federal jurisdiction treat intersystemic adjudication as a necessary evil. The verbal formulas vary somewhat, but these scholars express a preference for the courts of a particular legal system interpreting the law of that jurisdiction. (8) Contrary to that general critical backdrop, this Article offers a limited defense of intersystemic adjudication. Specifically, I make two primary arguments in support of intersystemic adjudication. First, I contend that intersystemic adjudication sometimes proves beneficial to the enforcement of rights. Second, I defend intersystemic adjudication as a legitimate exercise of judicial power in our constitutional system. In particular, I confront the claim that intersystemic adjudication violates key principles established by the Supreme Court's seminal decision in Erie Railroad v. Tompkins. (9) Both sets of arguments rely on a distinction between law and its judicial interpretation. Critics of intersystemic adjudication often appear to adopt the view that the law is only what the court says it is. Building on criticisms of that conception developed in the context of federal constitutional interpretation, this Article resists the conflation of law and its judicial interpretation. By insisting on this distinction, I defend the benefits and the legitimacy of courts interpreting the law of a different political system in appropriate circumstances.

To provide an understanding of the framework in which intersystemic adjudication operates, Part I sketches the key characteristics of federalism in the United States. This Part focuses on the move from dual federalism to a more interactive conception of federalism, as well as on the increasing agreement on fundamental values throughout the United States. Part II examines the dual judicial system of the United States and the resulting prominent role for intersystemic adjudication. Part III outlines the important distinction between law and its judicial interpretation. Drawing on these accounts of federalism and interpretation, Part IV explores the benefits of intersystemic adjudication and assesses the potential disadvantages. Part V turns to a defense of the legitimacy of intersystemic adjudication. This Part acknowledges tension between intersystemic adjudication and the spirit, if not the holding, of Erie. I argue, however, that Erie is best understood as unleashing state and federal governmental power so as to protect individuals. Erie heralds the development of cooperative judicial federalism; it does not represent the last gasps of dual federalism. This interpretation of Erie fully accords with the exercise of intersystemic adjudication. The Article concludes with some more general thoughts about the role of intersystemic adjudication as a second-best tool for enforcing rights in a system characterized by imperfection.

1. FEDERALISM AS POLYPHONY

   To understand the role of intersystemic adjudication in protecting rights, it is necessary to situate the practice within the scheme of federalism in the United States. The interaction of state and federal governments constitutes a core element of contemporary federalism. Intersystemic adjudication is an application of that interactive model to the characteristic issues of judicial federalism in the United States.

   1. From Dual Federalism to Cooperative Federalism to Interactive Federalism

      Federalism in the United States is entering a third phase. (10) Dual federalism provided the dominant conception of federal-state interaction into the twentieth century. In this model, sometimes termed dual sovereignty, the states and the national government exercised authority over distinct and mutually exclusive realms. (11) Federal power began where state authority ended, and the U.S. Supreme Court enforced a firm border between the two.

      The First and Second World Wars, along with the Great Depression, transformed federalism. Driven by the perceived need for concerted action to address a variety of national problems, the federal government expanded its authority over social and economic matters. (12) After initial resistance, (13) the U.S. Supreme Court eventually blessed the enlarged view of federal power. (14) Scholars dubbed the succeeding era a time of "cooperative federalism" in which the states and the federal government worked together to solve problems. State and federal authority no longer strictly corresponded to particular areas of regulatory activity. The states and the national government served as partners without rigid lines of demarcation. In the paradigmatic instance of cooperative federalism, the federal government would design regulatory goals, and the states would implement regulations in accordance with the overall federal plan. (15)

      Some have declared the end of the era of cooperative federalism. (16) Others have merely called for its demise. (17) Commentators have expressed concern that cooperative federalism lacks the competitive dynamic that can stand as an important feature of federalism. (18) Along these lines, scholars have emphasized the importance of meaningful decentralized decision making, rather than simple implementation of centrally decreed plans. (19)

      The complete nature of the successor to cooperative federalism is not entirely clear, but the general characteristics can be discerned. No one forecasts a return to dual federalism. The new phase of federalism, though, will place more emphasis than cooperative federalism on competition and even confrontation among the states and between the states and the national government. The common principle of the somewhat divergent understandings of contemporary federalism is that the goals of federalism are best achieved not through the quixotic attempt to separate state and federal spheres, but through embracing the interaction of state and federal governments. Intersystemic adjudication can play a vital role in implementing this conception of interactive federalism.

   2. Federalism of Shared Values

      Another important component of contemporary federalism stems from the relative homogeneity of values in the United States today. Dual federalism accepted the possibility that states might reach radically different conclusions about fundamental social issues. Dual federalism addressed this potential by erecting barriers between state and federal domains, and then protecting each state from interference with its policy choices. Polyphonic federalism corresponds to a more cohesive understanding about...