The gravitational force of federal law.

• Author: Dodson, Scott
• Position: Introduction through I. Federal Gravity, p. 703-729

In the American system of dual sovereignty, states have primary authority over matters of state law. In nonpreemptive areas in which state and federal regimes are parallel--such as matters of court procedure, certain statutory law, and even some constitutional law--states have full authority to legislate and interpret state law in ways that diverge from analogous federal law. But, in large measure, they do not. It is as if federal law exerts a gravitational force that draws states to mimic federal law even when federal law does not require state conformity. This Article explores the widespread phenomenon of federal law's gravitational pull. The Article begins by identifying the existence of a gravitational force throughout a range of procedural and substantive law felt by a host of state actors, including state rulemakers, legislators, judges, and even the people themselves. It then excavates some explanatory vectors to help understand and appreciate why federal law exerts a gravitational force. Finally, the Article considers some normative concerns with state acquiescence to the federal gravitational pull.

INTRODUCTION I. FEDERAL GRAVITY A. Procedure 1. State Rulemakers 2. State Courts a. State Rules Patterned After Federal Rules b. State Conformity Under Dissimilar Rules 3. Other Procedural Rules B. Substantive Areas 1. Statutes: Employment Discrimination 2. Constitutions: Bowers II. EXPLANATORY VECTORS A. Resource Conservation B. Vertical Uniformity C. Familiarity and Focus D. Political Cover E. Force of Habit III. NORMATIVE CONCERNS A. Interstate Variation and Fidelity to State Law B. Sovereign Reputation C. Cyclical Entrenchment CONCLUSION INTRODUCTION

Federalism promotes state autonomy in the development of legal norms, both as a matter of sovereignty and as a matter of experimentation. For the most part, states as sovereigns are entitled to design, implement, and interpret their respective state laws as they see fit. Their independence inures to the benefit of the whole, for state laws can be constructed to fit their particular local cultures, and the resulting diversity can offer opportunities for innovation and experimentation without damaging the whole.

Perhaps no one in the early modern era more forcefully pressed this vision of state autonomy than Justice Louis Brandeis. In a 1932 dissent challenging the Lochner-era Court's propensity to invalidate state laws on federal constitutional grounds, Brandeis famously wrote, "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (1) The premise was that states wanted to innovate. States wanted to exercise their sovereign independence, but the Supreme Court would not let them.

Six years later, Brandeis penned the even more famous opinion in Erie Railroad v. Tompkins, which prohibited federal courts from developing common law in diversity cases. (2) Erie overruled a previous case, Swift v. Tyson, which had allowed federal courts to develop their own substantive federal common law. Swift was premised in part on the idea that state courts would follow federal law on common-law matters, and that states would follow federal common-law development not as a matter of command but as a matter of judgment. (3) In Erie, Brandeis decreed that history had repudiated that premise: state courts refused to be followers. (4) And he confirmed the sovereign prerogative of independent state lawmaking in a federalist system. (5)

In light of Brandeis's powerful vision--oft-repeated by scholars and courts--one might expect the states to take full advantage of their lawmaking independence to forge legal norms and regimes that reflect the whims and prejudices of their own citizenries, even when those norms and regimes differ profoundly from those of the nation as a whole. (6) But in fact, since Erie, states have routinely followed federal law even when adherence is not compelled. Rather than blaze their own paths, states tend to look to federal law as their starting points. It is as if federal law exerts a kind of gravitational pull on states. This gravitational pull expands beyond courts--to legislatures, rulemakers, and even the people themselves.

The Constitution's Supremacy Clause, of course, makes some state following of federal law mandatory. (7) But I mean to focus on following of a different nature, one that derives not from legal compulsion but rather from allurement. This kind of state following persists in a host of areas traversing both procedural and substantive law. In each area, states often follow federal law for woefully inadequate reasons, and sometimes for no reason at all.

To be sure, federal lawmaking and interpretation may reflect a common policy shared by states, such that states mirror federal pronouncements because both sovereigns share similar policy goals. But there is evidence that much state parallelism is not independent. As this Article documents, states follow even abrupt and counterintuitive changes in federal law. If the Pied Piper heads out of town in the direction of a candy store, it may be difficult to tell whether the children are being lured by the music or the sweets. But if the Piper abruptly turns ninety degrees and the children still follow, then the parents would be convinced that it was the music. Examples of such state following abound.

This Article's central thesis is that something more than independent parallel conduct is afoot: federal law exerts a widespread gravitational pull on state actors. (8) To be sure, the pull of federal law is not inexorable. State actors can and do resist and diverge from federal law. But these counterexamples are also a part of the story. Perhaps paradoxically, they help prove that the gravitational force exists, and they offer clues as to why it has such pull.

In Part I, I defend the descriptive claim that federal law's gravitational force affects a wide array of state actors (including state rulemakers, legislators, and courts) across various areas of nonpreemptive law (procedural rules, substantive statutes, and constitutional provisions). In these areas, state actors have authority to craft regimes and render interpretations different from--even contrary to--federal law, and one might expect states to exercise this authority with some frequency. But, in significant measure, they instead follow federal law. Even when they resist the impulse to follow, they muster tremendous effort to do so. Federal law is a Piper's song that captivates the states.

Part II theorizes explanations for the gravitational force of federal law and for states' tendencies to follow. Mimicking federal law may offer a relatively safe way to ease the cognitive, systemic, and resource pressures of independently developing and maintaining a workable legal system. Or perhaps intrastate vertical uniformity is of overriding importance. State actors might be more familiar with federal law than state law. Or elected state actors could believe federal law offers political cover for their enactments or decisions. And following begets more following, resulting in a habit that supplies its own compulsion.

Part III then considers the normativity of the gravitational force of federal law and stakes out some of its vices. Following comes at the expense of the salutary benefits of variation and experimentation. Following can distort state law in ways that cause state law to misalign with, and potentially undermine, the policies and preferences of the state electorate. By appearing to be a shortcut, following can mar the reputation of states as coequal sovereigns in a federalist system. And, perhaps most troubling, following can induce cyclical entrenchment of the very causes of following in the first place.

I conclude with calls to action. I entreat states to seize their own empowerment and tackle state law with the attention to state interests that it deserves. At the same time, I urge federal actors to conduct their business with sensitivity to its shadow effect on states. I also seek others to join in a sociological and empirical effort to study and understand better the gravitational force of federal law.

1. FEDERAL GRAVITY

In this Part, I stake out the descriptive claim that federal law exerts a gravitational pull on state actors. To defend the claim, I consider a number of examples of procedural and substantive law, and I study relationships among courts, rulemakers, and legislators.

1. Procedure

   In the post-1938 world, federal and state courts independently develop and apply their own procedures. Except in very limited contexts, forum procedure controls: federal procedure applies in federal courts, and state procedure applies in state courts. (9) Thus, states are free to adopt their own rules of procedure, and state courts are free to interpret their state rules independently of federal rules and federal judicial opinions. (10) Consequently, consideration of procedural rules presents an opportunity to study the gravitational effect of federal law on both state rulemakers and state courts.

   1. State Rulemakers

      Before 1938, states had a long history of innovation and self-reliance in designing civil procedure...