Intersystemic statutory interpretation: methodology as 'law' and the Erie doctrine.

• Author: Gluck, Abbe R.

INTRODUCTION I. INDETERMINACY IN STATUTORY INTERPRETATION AND FEDERALISM'S ARCHITECTURE OF CONCURRENT JURISDICTION A. The Unresolved Legal Status of Federal Interpretive Methodology 1. Methodology as "Rules of Thumb" 2. Methodology" as Federal Common Law a. Comparisons to Federal Common-Lawmaking for Constitutional Interpretation 3. Methodology as Something in Between B. Different Questions Raised by Statutory Interpretation in the States C. The Architecture of Concurrent Jurisdiction and the Erie Doctrine 1. The Asymmetrical Structure of Concurrent Jurisdiction 2. The Erie Doctrine II. FEDERAL COURTS AND STATE STATUTES A. Three Ways in Which State Statutes Come to Federal Court for Interpretation B. Diversity Cases 1. Problem 1: The Tools that Courts Will Use To "Predict" State Law 2. Problem 2: Mixing Federal and State Methodology a. Using Federal Methodology b. Using Both Federal and State Methodology 3. Problem 3: Conflicts Between State Courts and State-Legislated Interpretive Rules 4. Problem 4: Dynamic Statutory Interpretation C. Federal-Question Cases Requiring State Statutory Interpretation 1. In the U.S. Supreme Court 2. In the Circuit Courts 3. Special Treatment for Constitutional Avoidance a. U.S. Supreme Court Origins of this Restrained Approach b. Are the Constitutional Cases Justifiably Different? 4. Exception: Voluntary Application of State Methodology III. STATE COURTS AND FEDERAL STATUTES A. State Courts Using Federal Methodology for Federal Statutes B. State Courts Using State Methodology for Federal Statutes C. Disuniformity of Federal Law IV. METHODOLOGICAL ANALOGIES AND ERIE A. Analogous Jurisprudential Principles 1. Analogies to Rules on Interpretation of Texts: Contracts, Wills, and Trusts 2. Analogies to Other Ex Ante-Defined Reasoning Processes: Choice of Law, Stare Decisis, and Constitutional Law Frameworks 3. Analogies to Burden-Allocation Principles B. Applying the Erie Considerations to Statutory Interpretation 1. The Contracts Argument: Statutory Interpretation and Primary Conduct 2. Statutory Interpretation Methodologies as Rules of Decision 3. Statutory Interpretation, Federal Interests, and Federal Judges C. A General Common Law of Statutory Interpretation? V. INTERSYSTEMIC STATUTORY INTERPRETATION CONCLUSION 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 statutory interpretation rather than citing the interpretive rules of the relevant state? This, arguably, is where statutory interpretation theory should meet the Erie doctrine. Erie, after all, requires federal courts to apply state law to state legal questions. (1) But federal courts do not seem to think of statutory interpretation methodology as "law" in the first place, much less as law subject to Erie.

To put the point more concretely:

* Assume that the only question in a diversity case before the Sixth Circuit is how to interpret a Michigan tort stature. Assume also that the Michigan Supreme Court recently decided a case holding that the "rule against absurdities"--which directs courts not to construe statutes 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. Can the federal court apply the rule against absurdities to the Michigan statute?

* Now here is a twist: does the answer change if the exact same state-law question is presented in federal court, not under the diversity jurisdiction, but instead embedded as part of a federal-question case?

Despite decades of incessant talk about statutory interpretation, the federal courts have no answers to these inquiries. Indeed, the entire area is something of a doctrinal mess. Neither the federal nor the state courts have any consistent or well-articulated approach to the question of whether they are required to apply one another's interpretive methodologies to one another's statutes. What's more, this phenomenon has gone mostly unnoticed, or no one seems to care. (2)

And in fact, this Erie muddle makes apparent something even more important about statutory interpretation in general: namely, that statutory interpretation's most fundamental jurisprudential question--whether statutory interpretation methodology is "law," individual judicial philosophy, or something in between--remains entirely unresolved. The U.S. Supreme Court generally does not treat its statements about statutory interpretation methodology as law. Five votes in agreement with respect to the interpretive principles used to decide one case do not create a methodological precedent that carries over to the next case, even where the same statute is being construed. In contrast, some state courts do treat their rules of statutory interpretation like any other substantive legal doctrine, (3) a development that further complicates any understanding about the legal status of statutory interpretation methodology.

Interestingly, at least some of this uncertainty in statutory interpretation derives from the same kinds of jurisprudential ambiguities that motivated Erie itself. Erie culminated a sea change in how judges view law; it reflected a move from the idea of a body of "natural," general, or universal legal principles to a more positivistic understanding of law as something specific, a policy choice linked to a particular jurisdiction, and a choice that can vary from one jurisdiction to another. (4) But in the context of statutory interpretation, Erie's jurisprudential impact has not been thoroughgoing.

Applying the Erie doctrine to statutory interpretation brings into focus these open questions about the legal status of methodology. Erie requires federal 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 federal law. (5) And so we need to understand what statutory interpretation methodology is and how it affects cases. (6) In the opposite situation, often loosely called "reverse-Erie"--when state courts interpret federal law--the inquiry is slightly different and implicates the Supremacy Clause: state courts must ask whether there is any federal "law" on point that binds them. (7) And so, there, we need to know whether there is, could be, or should be a federal common law of statutory interpretation, compulsory under the Supremacy Clause, to control state courts' methodological choices when they construe federal statutes.

This Article examines a decade's worth of state and federal cases in which the 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, at a minimum, they are not sufficiently aware that the question exists in the first place. Consider some of the doctrinal inconsistencies that we shall identify: in diversity cases, federal courts sometimes apply federal statutory interpretation principles to state statutes but sometimes apply state principles, and they almost never explain the basis for their choices. On the other hand, when state statutes are presented as part of federal-question cases, many federal courts routinely neglect state interpretive principles. But in many of these federal- question cases, the state statutory questions are analytically distinct from the federal-law issues, and so there is no reason that they should be interpreted in a manner that differs from how they would be interpreted in diversity cases. (9)

In still other cases, federal courts diverge from state practice for completely different reasons apparently grounded in federalism concerns, most notably the notion that they are not "equal" interpreters of state law. They often refuse, for example, to apply widely accepted statutory interpretation doctrines--most conspicuously, the canon of constitutional avoidance--to state-law questions, despite the fact that federal courts often apply those doctrines in federal cases and despite the fact that state courts themselves apply those canons in their own cases.

The other side looks very different. In federal statutory interpretation cases heard in state courts, the state courts aggressively assert their independent role in interpreting federal statures. 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 state courts feel free to select from a wide array of interpretive principles. The problem is that the regional federal courts of appeals are in the same position: they too must interpret federal statutes with only loose methodological guidance from the U.S. Supreme Court. As a result, state and federal courts within the same regional circuit can reach different interpretations of the same federal stature based on different chosen rules of interpretation. And because the state supreme courts are coordinate (not inferior) to the federal courts of appeals on matters of federal law, state courts have no obligation to harmonize their interpretive choices with the decisions of their local federal courts of appeals. (10) The consequence? Intentional disuniformity--different case outcomes--among geographically linked courts on identical federal statutory questions.

Courts are usually far more careful than this. At a minimum, courts typically take pains to explain the basis for diverging from standard practice or for proceeding inconsistently. It is difficult to imagine, for example, the Seventh Circuit, in a Wisconsin contract-law case, ignoring the fact that Wisconsin has adopted a particular version of the parol evidence rule. And yet we routinely see analogous principles--for example, how a state treats extrinsic evidence such as legislative history--overlooked without justification when federal...