INTERPRETING STATE STATUTES IN FEDERAL COURT.

• Author: Bruhl, Aaron-Andrew P.

INTRODUCTION 62 I. THE FEDERAL COURTS'CURRENT ANSWER 66 A. The Existing Scholarly Assessment 66 B. The Reality: Federal Courts Routinely Use State Methodology 68 1. Cases Citing Erie 68 2. Cases Addressing Whether Federal Courts Must Use State Methods, Without Necessarily Citing Erie 70 a. Supreme Court 71 b. Lower Federal Courts 72 3. Systematic Study of Federal Cases 75 C. Limited Exceptions to the General Use of State Methodology 79 1. Dynamic Interpretation of State Statutes 79 2. Constitutional Avoidance 81 II. THE RIGHT ANSWER 83 A. Federal Constitutional Requirements That Bear on Interpretive Methods 85 1. Some Federal Constitutional Limits 85 2. Federal Constitutional Preemption of State Authority 86 3. Interpretive Freedom from External Authority? 88 B. Federal Statutory Interpretive Directives 89 C. The Rules of Decision Act and the "Relatively Unguided" Erie Analysis 90 D. "Where They Apply "--State Interests in Federal Interpretation of State Law 93 E. "Rules of Decision, " "Substance, " and "Procedure " 100 F. Outcome Determination, the Twin Aims of Erie, and Federal Interests in Using State Methodology 106 G Characterization of Methodology as State Law Versus Federal Common Law That Borrows State Content 109 III. EXCEPTIONS AND SPECIAL CASES 113 A. Exceptions to the General Rule That State Methodology Applies 113 1. Potential Exceptions for Federal Judicial-Administrative Interests 113 2. Potential Exceptions Rooted in the Nature of the Federal Judiciary 117 a. Constitutional Avoidance as a Blended Canon 117 b. Dynamic Interpretation 120 B. Special Topics and Applications 122 1. State Methods for Federal Statutes in Federal Court? 122 2. Statutory Interpretation's Horizontal and Diagonal Erie Problems 124 3. The District of Columbia and the Territories 126 CONCLUSION 126 INTRODUCTION

Harry Tompkins was hit by something sticking out of the side of a train. The landmark case of Erie Railroad Co. v. Tompkins held that the tort law governing his lawsuit against the railroad was state tort law as announced by the relevant state courts, not a "federal general common law" of torts that the federal courts could independently discern and shape. (1) Although the Erie case involved common law, federal courts must apply state statutes too. To apply statutes means to interpret them. (2) Federal interpretation of state statutes is therefore pervasive.

And how does one go about interpreting a state statute? In many cases, interpretation feels automatic: an automobile is a "vehicle" within the meaning of a drunk-driving statute, and the only rule one needs to know (or intuit) in order to reach that obvious conclusion is that words in statutes normally carry their ordinary meaning. But statutory interpretation is also a technical activity governed by dozens of canons and presumptions of interpretation (some commonsensical, some not), plus rules about the use of extrinsic sources like legislative history and agency interpretations. (3) And just as a railroad's duty to people walking along its tracks can differ under New York, Pennsylvania, and federal law, the canons and rules of interpretation can differ across jurisdictions as well. (4)

Consider a few examples of divergences in interpretive methods: * Federal courts generally interpret federal statutes with a presumption that the statutes apply domestically only, not extraterritorially. (5) Some states interpret their state statutes with a similar presumption against extraterritoriality, but others do not. (6) Whether a state statute applies to conduct outside of the state can therefore depend on whether a court applies the federal presumption or a state nonpresumption. Which rule should a federal court use when it is applying a state statute from a state that has no such presumption?

* A Virginia statute directs that bill summaries prepared during the legislative process may not be considered as evidence of legislative intent. (7) The U.S. Court of Appeals for the Fourth Circuit, which encompasses Virginia, believes that legislative history may be considered to discern the intent behind federal statutes, at least if the statutory text is unclear. (8) May courts in the Fourth Circuit consider bill summaries for Virginia statutes? (9)

* Some state courts are experimenting with "corpus linguistics," which is said to be a more scientific way to determine ordinary meaning than using dictionaries or appealing to judicial intuition. (10) Must federal courts use that method for those states' statutes, even if competent execution of the technique requires a Ph.D. or other training?

As these examples show, federal courts interpreting state statutes face an Erie-like choice-of-law question, more precisely a choice of interpretive law. Which interpretive methods should federal courts use? And what do federal courts actually tend to do in these circumstances--apply the enacting state's methods or federal methods? The questions are not only of theoretical interest, for case outcomes can change depending on the governing rules.

Setting out the solution to statutory interpretation's Erie problem and determining whether the federal courts have reached that solution requires both normative and positive work. The Article does that work in three parts.

Part I is descriptive and explanatory. It begins with the existing scholarly accounts of what the courts are doing. According to most scholars who have studied the matter, the federal courts are either confused about what to do or usually apply federal interpretive principles to state statutes. (11) Through a systematic review of the existing caselaw, my research reveals a different reality. The courts are sometimes inattentive and sometimes make mistakes, but they are not particularly divided over what they should be doing. What they are doing is, as a general rule, applying state interpretive methods to the interpretation of state statutes. The lower federal courts are much more careful about this than the Supreme Court. There are, it is true, certain categories of cases in which the federal courts often apply federal interpretive principles, but, contrary to other scholars' perceptions, these categories are circumscribed exceptions to the general rule. And, moreover, it makes sense that these domains would be treated as exceptional.

Part II considers what the federal courts should do when they encounter state statutes. Happily, the normative prescription largely aligns with the actual practices described in Part I. Federal courts should generally apply state interpretive principles when interpreting state statutes. In adopting this prescription, I mostly agree with the majority of the small group of commentators who have considered the matter, (12) but the account here aims to improve on prior analyses in several respects. Some of the existing accounts overlook important aspects of the problem, such as countervailing federal interests and what states have told us about the proper scope of their interpretive methods, or they rely too heavily on analogies to doctrinal spaces like contract interpretation at the expense of the relevant first principles. On the way to reaching the conclusion that state methods should generally apply, Part II considers and rejects the most plausible arguments to the contrary, including that the Constitution itself provides a federal interpretive method, that interpretation is a "procedure" that should be governed by federal law rather than enacting-state law, and that the states themselves do not regard their methods as law applicable in other courts. Each of those counterarguments has force in some circumstances, and some turn on debatable empirical propositions, but none is generally true.

An important aspect of the Article's contribution comes in Part III, which sets out exceptions to the general duty to follow state law and elaborates on some special topics. Most notably, Part III marks out a limited space in which federal interests or federal judicial incapacity mean that federal courts should not follow state rules for interpreting state statutes. These considerations at least partly justify the limited departures from state methodology observed in Part I. Moreover, these federal interests could in the future justify broader federal departures from some novel state interpretive practices, such as the corpus-linguistics analysis with which some states are experimenting. (13)

1. THE FEDERAL COURTS' CURRENT ANSWER

   This Part's task is to describe what the federal courts are currently doing. I begin with how other scholars have described the situation. I then undertake my own, more systematic investigation.

   1. The Existing Scholarly Assessment

      Abbe Gluck has done more than anyone else to put statutory interpretation's Erie issues on the scholarly radar screen. She contends that the federal courts generally should follow state interpretive methodologies when interpreting state statutes. (14) When it comes to describing-existing federal practice, she writes that the federal courts have generally failed to do as they should. The federal courts, she writes, "do not typically apply state methodology to state statutory questions" and indeed "rarely consider state rules of statutory interpretation." (15)

      Most other observers who have considered the matter have reached similar conclusions. The tome on precedent recently published by Bryan Garner and more than a dozen judges states, for example, that "[a] few (but not all) federal courts" apply state interpretive principles to state statutes. (16)

      There is some dissent from the prevailing scholarly assessment of the federal courts' approach to state statutes. Sydney Foster, in a generative early article on methodological stare decisis, wrote that " [f] ederal courts have held that when they are interpreting state statutes, the federal courts must follow state, not federal, statutory interpretation doctrine," though a footnote acknowledged that...