The federal common law of statutory interpretation: Erie for the age of statutes.

AuthorGluck, Abbe R.
PositionII. Some Proof That Statutory Interpretation Methodology Is Not Understood as "Law" D. Many Federal Courts Do Not View Statutory Interpretation Methodology as a "Rule of Decision" Subject to Erie through Conclusion, with footnotes, p. 780-811
  1. Many Federal Courts Do Not View Statutory Interpretation Methodology as a "Rule of Decision" Subject to Erie

    Perhaps the most compelling proof of the current jurisprudential perspective may be found in the "ordinary" Erie cases: the vast number of cases in which federal courts must interpret state statutes.

    Despite the fact that the Rules of Decision Act always has been interpreted to require federal courts to apply state statutes to resolve state-law questions, there is no general understanding, much less any consistent practice, concerning just how federal courts applying state statutes are to interpret them. (101) Federal courts rarely consider state rules of statutory interpretation. (102) Instead, federal courts do not seem to think of choice of methodology as an Erie question in the first place. They generally apply the same interpretive rules to state statutory cases that they would apply to federal cases and do not offer any of the typical Erie-related justifications for diverging from state practice. (103)

    To be sure, there are plausible reasons why federal courts might eschew state interpretive principles in a limited number of cases. There might be substantial federal interests in applying particular interpretive principles--for example, the rule of lenity, which some view as constitutionally derived--or concerns that the state principle at issue sits in tension with certain federal legal doctrines--for example, a hypothetical state presumption in favor of construing all gender-ambiguous statutes to include men only. (104) Or one could make arguments that statutory interpretation methodology, even if "law," is not law subject to Erie: perhaps it is not "outcome determinative" (although the cases indicate otherwise). Or perhaps it is more "procedural" than "substantive," (105) and it certainly is possible that the canons might be divided between those two categories. But federal judges do not make such arguments to justify their methodological choices in state statutory cases.

    There also might be more categorical, constitutional arguments that would explain why federal courts might ignore state methodology altogether. For example, if a federal judge views her interpretive methods as bound up in her character as an Article III judge, perhaps her interpretive methods go wherever she goes. Here, however, one would have to ask why statutory interpretation methodology would be singled out for special treatment when, as we shall see in the next Part, analogous interpretive rules from contract and constitutional interpretation do not similarly move with Article III judges to the state-law context.

    Another argument might be that all statutory interpretation methods are constitutionally compelled. Under this view, a judge who believes it is unconstitutional to consider legislative history in federal cases might believe that she must take the same position in state cases. But virtually all Constitution-based arguments that have been made to justify interpretive choices have been Article I-based arguments or arguments about the federal, Article I-Article III (Congress-Court) relationship. Justice Scalia and Professor Manning, for example, have explicitly justified their textualist methodology with Article I-based arguments about bicameralism, presentment, and nondelegation. (106) Purposivists likewise justify their methodological choices on their vision of the proper relationship, which they often describe as a "partnership," (107) between federal courts and Congress. But an Article I-based theory of statutory interpretation methodology obviously cannot explain why federal interpretive rules should apply when federal courts interpret statutes that are passed by state legislatures rather than by Congress. (108) The relevant institutional arrangements in that context could be entirely different.

    1. Diversity Cases

      Even in run-of-the-mine diversity cases, where the only question presented is the interpretation of a state statute, federal courts are extremely irregular about whether they consult state interpretive principles. Only the Fifth Circuit has consistently held that Erie requires it to apply state interpretive methodology to state statutes in diversity. (109)

      Many different examples of this phenomenon exist, but for this Article's purposes, one will suffice. Consider the U.S. Supreme Court's most recent Erie decision, Shady Grove Orthopedic Associates v. Allstate Insurance Co., (110) which grappled with a typical Erie question: a purported conflict between a New York class action statute and Federal Rule of Civil Procedure 23. (111) But a critical, initial aspect of the case actually turned on a question of state statutory interpretation: the Court first had to decide whether there was a conflict between the New York statute and the federal rule. (112)

      Both the majority and the dissent construed the New York statute in deciding that question. Justice Scalia's opinion for the Court gave the New York statute a textual reading and argued that such a reading put it in direct conflict with Rule 23. (113) In contrast, Justice Ginsburg's dissent argued that, under a purposivist construction of the New York statute, there was no conflict. (114) Neither side, however, considered whether New York's highest court would consult legislative history and purpose, as Justice Ginsburg did, or whether it would favor a literal approach, as Justice Scalia did. Instead, each looked only to federal statutory interpretation cases. (115)

      And in fact, Justice Scalia's reasoning for the Court in Shady Grove seems to challenge the entire premise of any argument that Erie applies to statutory interpretation methodology. In critiquing Justice Ginsburg's purposivist approach, Justice Scalia argued that, if consultation of state legislative intent were required, "federal judges would be condemned to poring through state legislative history--which may be less easily obtained, less thorough, and less familiar than its federal counterpart." (116) Many state courts do routinely consult legislative history, (117) and Justice Scalia's argument implies that it would never be appropriate for federal courts to apply state interpretive methodology in those circumstances, or perhaps, ever. (118) But Erie requires federal judges to take state law as they find it.

      Similar examples abound, from both the U.S. Supreme Court and the lower federal courts. (119) There are also different kinds of cases, in which federal courts do not exactly ignore state methodology. For instance, the Ninth Circuit typically cites both state and federal precedents for the interpretive principles it applies to state cases--a practice that evinces either its confusion about which system's rules to apply or its understanding of these state and federal rules as interchangeable, and perhaps as general law. (120)

      None of this is to understate the difficulty for any court to predict how a superior court or another jurisdiction's court will act. But, in other contexts, as Michael Dorf has noted, "Erie has been generally understood to require federal court adherence to state 'meta' principles of law." (121)

    2. Federal Question Cases

      Federal courts even more explicitly disregard state interpretive principles in federal question cases, (122) even though in many such cases one part of the case turns on an embedded and often preliminary question of state statutory law. (123)

      Again, one of many possible examples should suffice. Consider Stenberg v. Carhart, in which the U.S. Supreme Court heard a federal constitutional challenge to Nebraska's late-term abortion statute. (124) The basis of jurisdiction in that case was a federal question because of the constitutional challenge, but the Court had to determine what the state statute meant before it could decide whether the statute was constitutional. (125) Specifically, the Court began its analysis by asking a state-law question: whether the Nebraska statute prohibited the two main types of late-term abortion procedures or only one type. (126) The Court, however, cited only federal interpretive principles to support its answer to that question. (127) The dissenting opinions likewise cited almost entirely federal methodological precedents. (128)

      Carhart is not an outlier. I have previously chronicled numerous examples of the same phenomenon. (129) There are also some cases in which federal courts hold explicitly that they are not required by Erie to look to state methodology in federal question cases but do so voluntarily. The Fifth Circuit offers an example, holding that "reference to [Texas interpretive rules] is not mandated by Erie ... [where] subject-matter jurisdiction today is based on a federal question," but that it would make "little sense" not to apply state rules of construction in most federal question/state-law cases. (130)

      Of course, this intermediate position--that federal courts apply state interpretive methodology at their option--is doctrinally the same as the position that Erie does not require federal courts to apply state interpretive principles to state statutory questions at all. (131)

      I have focused at length on the application of Erie to statutory interpretation methodology because it provides a window into how federal courts think about the legal status of those interpretive principles. Presumably, if federal courts understood most methodology as common law (perhaps excluding any specific principles viewed as constitutionally compelled), they would at least consider Erie when choosing how to interpret state statutes.

      The choice-of-law context offers an apt comparison. Like statutory interpretation rules, choice-of-law rules are decision-making, or meta, regimes; they provide courts with a reasoning process to determine which state's laws control. But choice-of-law rules are understood as common law and, as the Court held long ago in Klaxon Co. v. Stentor Electric Manufacturing Co., Erie requires...

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