STARE DECISIS AND INTERSYSTEMIC ADJUDICATION.

• Author: Varsava, Nina

INTRODUCTION 1208 I. PRECEDENT AND INTERPRETIVE METHODOLOGY 1212 A. Terminology 1212 B. Related Literature 1214 C. Conflicting Methods of Interpreting Precedent 1220 1. Scope 1221 2. Voting 1222 3. Fractured Decisions 1223 I). Illustration 1224 II. INTERSYSTEMIC INTERPRETATION IN PRACTICE 1227 A. Federal Courts Interpreting State Cases 1227 B. State Courts Interpreting Federal Cases 1231 III. INTERSYSTEMIC INTERPRETATION IN THEORY 1235 A. Substance versus Procedure 1236 B. Interpretive Methodology and Theories of Law 1239 C. Positivism 1243 1. Stare Decisis as Rule of Recognition 1244 2. Indeterminacy 1247 3. Mistakes 1247 I). Law as Integrity 1249 1. Constructive Interpretation and Stare Decisis 1249 2. Epistemology and Interpretative Methodology 1256 3. Are U.S. Judges Dworkinians? 1259 4. Is Interpretive Methodology Special? 1260 CONCLUSION 1263 INTRODUCTION

The interpretive approaches of judges differ substantially across jurisdictions. Some jurisdictions, for example, are more purposivist, whereas others lean more textualist. What is a court to do, then, in the intersystemic context when it is charged with adjudicating a dispute arising under the substantive law of another jurisdiction? For example, if the Seventh Circuit Court of Appeals exercises diversity jurisdiction over a Wisconsin state law dispute, is it bound by the methods that Wisconsin state judges would use to interpret state statutes and regulations, judicial decisions, and the state constitution?

This issue arises frequently, although often only implicidy, in all kinds of cases and courts. Federal courts have to interpret state law whenever they exercise diversity or supplemental jurisdiction. State courts are often tasked with interpreting federal law or the law of other states. Sometimes courts are even charged with interpreting the law of foreign countries.

Judges, lawyers, and scholars generally agree that, in the intersystemic context, the law-applying or forum court is not permitted to just make up the law to be applied, nor to impose the law of its own jurisdiction. Instead, the forum court must treat the foreign jurisdiction as the law-supplier. The court has the task, accordingly, of interpreting and applying the law of the other jurisdiction, which involves identifying that jurisdiction's sources of law and determining their legal effect on the dispute at hand.

But must the forum court also apply the methods of interpretation that courts in the law-supplying jurisdiction would use? If the law-supplying jurisdiction embraces purposivism as a means of interpretation, then should the forum court follow interpretive suit? What if the forum court judges believe that textualism is a superior method of interpretation? And what if they are right about that?

This Article argues that the duty to apply the substantive law of another jurisdiction does not necessarily entail a duty to apply that jurisdiction's interpretive norms. The Article shows how one's answer to this question of interjurisdictional interpretation turns on one's theory of law. Although I focus on the U.S. federal-state context, my analysis should apply just as well to any other context where courts in one jurisdiction apply another jurisdiction's law. And so the conclusions reached here have critical implications for our legal system as well as others.

Under H.L.A. Hart's positivist theory of law, law-applying judges will generally have an obligation to defer to the interpretive methods of the judges in the law-supplying jurisdiction, although in some cases they will have discretion to depart from those methods and in other cases even an obligation to do so. In contrast, under Ronald Dworkin's competing theory of law as integrity, law-applying judges will often have an obligation to apply their own interpretive methods to a dispute arising under another jurisdiction's law, even if these methods differ from the interpretive methods of the judges in the law-supplying jurisdiction.

This Article thus demonstrates the critical relevance of analydcal jurisprudence to conflict of laws theory and practice. To get traction on vital questions about interpretation in the intersystemic context, we have to address core philosophical questions about the nature of law, a point that has been neglected in the existing literature on interpretation in the intersystemic environment.

This Article focuses on judicial approaches or methods of interpreting and applying precedent that themselves are developed through judicial decisions; I refer to these norms hroadly as doctrines of stare decisis. My main argument, though, should extend to other types of legal interpretation and application as well, including judicial approaches to statutory interpretation. I focus on the interpretation of precedent because the topic has received little attention compared to its statutory counterpart and has been surprisingly undertheorized, in both judicial opinions and legal scholarship. At the same time, conflicting views about the doctrine of stare decisis have come to a head in recent Supreme Court decisions, revealing deep meta-precedential disagreement among the Justices. (1) Conflicts in methods of statutory interpretation among jurisdictions, courts, and judges have been well-documented and widely discussed in legal scholarship, whereas conflicts in methods of precedential interpretation have seen much less scholarly attention. (2) Further, we already have a rich body of descriptive literature on whether courts treat methods of statutory interpretation as interjurisdictionally binding, (3) but the corollary question of interjurisdictional deference to methods of precedential interpretation has received little study.

And yet, a great deal rides on the latter question. The interpretive methods that judges apply to previously decided cases determine the rules of decision that those cases represent and accordingly the legal rights and duties that they provide or impose. And, methods of construing precedent, just like their statutory and constitutional counterparts, can and do differ across jurisdictions and courts. (4) For example, some courts interpret plurality decisions as binding precedent and some do not; some courts take the median or middle opinion of a plurality decision as binding, even if only one judge endorsed that opinion, whereas other courts search for majority agreement across all the opinions; some judges insist that all judicial decisions, even those that are "unpublished," create binding precedent, but for others unpublished decisions are not precedential. This Article takes methods of interpreting plurality or fractured decisions as a central case study, since these methods tend to be relatively explicit in judicial opinions, whereas other methods of interpreting precedent--for example, techniques for separating holdings from dicta--are more elusive.

For illustrative purposes, I focus on cases of federal courts interpreting state judicial decisions and state courts interpreting federal ones. Under the monumental case of Erie Railroad Co. v. Tompkins, a federal court adjudicating a state claim has a legal duty to apply state substantive law, including the judge-made law contained in state judicial decisions. (5) But are the methods that a state's courts use to interpret judicial decisions part of the state's substantive law for Erie purposes? Likewise, state courts of course have to apply federal precedent to questions of federal law, but do they necessarily have to apply federal methods of interpretation in the process? (6) Commentators have generally assumed affirmative answers to both questions, collapsing second-order questions of meta-precedent with first-order questions of precedent. (7) Although that position may be intuitive, this Article shows that it is too quick.

Through a descriptive analysis of federal courts interpreting state precedent and vice versa, I show that federal judges often act as though they are not required to apply a state's doctrine of stare decisis to a question arising under the state's case law, even as they recognize a duty to apply the state's substantive law and genuinely endeavor to fulfill that duty. State courts applying federal precedent demonstrate greater but far from unequivocal deference to federal stare decisis doctrine. In the intersystemic context, courts do not treat doctrines of stare decisis the same as other judge-made doctrines.

The theoretical account of interpretive methodology and intersystemic adjudication that this Article develops would explain, and justify, the judicial practices that we observe in the context of federal-state interjurisdictional interpretation. Moreover, my account can shed light on the implicit theoretical commitments of both judges and scholars. A judge's treatment of stare decisis doctrine in the interjurisdictional context is indicative of their underlying theory of law. Likewise, a scholar's view about the extent to which judges should defer to the law-supplying jurisdiction on stare decisis methodology reveals their implicit jurisprudential commitments.

Part I reviews the related literature, and explains how methods of interpreting precedent can and do conflict. Part II shows how, in practice, judges often acknowledge that they have a duty to apply the precedent of another jurisdiction without recognizing a corresponding duty to apply the other jurisdiction's doctrines of stare decisis. Part III argues that, as a theoretical matter, methods of interpreting precedent do not necessarily travel with the underlying law; I show how our answer to this question of interjurisdictional adjudication depends on our jurisprudential commitments regarding the nature of law.

1. PRECEDENT AND INTERPRETIVE METHODOLOGY

   This Part begins by defining some key terms and reviewing the related literature on interpretive methodology and conflict of laws. It then turns to an explanation of how methods of interpreting...