The gravitational force of federal law.

• Author: Dodson, Scott
• Position: II. Explanatory Vectors through Conclusion, with footnotes, p. 729-753

2. EXPLANATORY VECTORS

   This Part considers the reasons behind federal law's gravitational force and why it is so persistent across different areas of the law and institutional actors. The most benign explanation is that federal law gets the law right first, and state actors, realizing this, follow as a matter of agreement and judgment. Were this Swiftian ideal true, (141) perhaps first-year law students (not to mention distinguished federal judges) might be saved from the many tribulations of the Erie doctrine. (142)

   But common sense, localism, and history all undermine confidence that federal law frequently gets things correct for the states. Further, states often follow federal law without much explanation of their reasoning. (143) When states do explain, their explanation is almost always "because federal law says so." (144) This heavily contrasts with states' detailed analyses for rejecting federal law. (145) As a result, explanations for state isomorphism generally, and in specific instances, need deeper theorizing. (146) This Part unearths a number of practical and political explanations for federal law's gravitational pull on the states. (147)

   1. Resource Conservation

      Maintaining a workable legal system, which is a role co-performed by the courts, can be both difficult and time consuming. Why reinvent the wheel? If a federal institution adopts a workable (or at least defensible) regime or interpretation of federal law, states could co-opt that solution with little effort and expense. It is cognitively easier and simpler for states to follow a trodden path of federal law than to blaze a new trail. Further, federal models offer a non-diminishing public good that can be consumed equally and without rivalry by all states. In a world where states have scarce resources, piggybacking on the efforts and insights of federal actors seems sensible and even economically desirable.

      These practical pressures increase exponentially as they trickle down through the legislation-interpretation process. If state lawmakers and rulemakers ride on the coattails of the rigorous and detailed work of Congress and federal rulemakers, they are likely to record less debate, perform less independent factfinding, and produce less legislative and rulemaking history. When state courts then confront interpretive questions, they lack the useful tools of legislative or rulemaking study and history to which federal courts routinely have access. (148) The lack of independent state-based interpretative guidance increases the burdens on state courts to conduct independent analysis. At the end of the day, perhaps state courts are simply relieved to have the opportunity to crib from a learned and detailed federal opinion, even if the federal opinion speaks only to federal law.

      Further, because state courts are able to adjudicate matters of federal law, (149) plaintiffs can join analogous state and federal claims in one action. A state judge confronting a case requiring adjudication of both federal and analogous state law will find it far easier to dispose of both claims on the same grounds than to differentiate between them, doubling time and effort. Of course, savvy defendants may remove a state court action containing both state and federal claims to federal court, or a plaintiff may file in federal court originally. (150) But the pressures on state judges to adjudicate analogous claims under like standards will push federal judges in the same way: to apply federal standards to analogous state claims. Either way, state law gets pulled into the shadow of analogous federal law.

      Resource conservation may help explain a great deal of state following in the statutory and constitutional arenas. (151) Because the Supreme Court is the last and official word on the scope of the U.S. Constitution and on the constitutionality, validity, and meaning of federal statutes, its interpretative decisions on matters of federal law can be perceived by states to create a presumption of validity for analogous state court decisions. In Bowers, for example, the Supreme Court concluded that because homosexual sodomy was not a "fundamental" right "deeply rooted" in the traditions of society, it was not a right subject to "heightened scrutiny" by the U.S. Constitution. (152) It is no surprise that the Georgia Supreme Court took advantage of the ease of applying this line of reasoning to its state sodomy-solicitation statute under the Georgia Constitution. (153) The Bowers opinion served up an easily traceable pattern stamped with the Supreme Court's approval. To write differently--as the dissenting Georgia justices did--would have required much more effort (as their much longer opinion suggests it did). (154) The same cost-avoidance tendency holds true for matters of statutory law.

      This resource-conservation theory of state following might also explain some instances of state procedural divergence. The states that least incorporate the Federal Rules of Civil Procedure are primarily large, resource-rich, independently minded states that can more easily absorb the cost of promulgating their own rule systems. (155) Even for traditional followers, the cost of repeat following might exceed the cost of standing still if federal law changes too rapidly. This may explain why replica states have not kept pace with the frequent changes in the Federal Rules; (156) it is easier for rulemakers to remain inert than to issue conforming amendments every year.

   2. Vertical Uniformity

      An obvious rationale for state following is to reap the benefits of uniformity. At the horizontal federal level, uniformity has long played a powerful role in shaping federal institutional structure and jurisprudence. (157) As Richard Fallon argues, uniform treatment, interpretation, and application of federal law are closely tied to notions of legal and governmental legitimacy. (158) In perhaps an overstatement, Thomas Wall Shelton, seeking passage of a bill to provide for federal procedural uniformity, said, "[Uniformity is] so splendid, so beautiful and so beneficial in every respect, as to command unstintedly the loving labor, time and treasure of the best men of this marvelous age in which we live." (159)

      Vertical uniformity stands on somewhat different footing. Uniformity within a single legal regime has a stronger case than uniformity across two independent regimes. Nevertheless, vertical uniformity has long been considered a jurisprudential virtue because it offers: (1) predictability within a particular geographic region; (2) simplicity, clarity, and efficiency by reducing variation; (3) the appearance of neutrality; and (4) the enhancement of reputation by evincing unanimity and consistency. (160) Indeed, the prevalence of "uniform" codes, "model" codes, and "restatements" designed to encourage uniformity across fifty different sovereigns is a manifestation of law's push toward uniformity across independent regimes. (161)

      In the procedural context in particular, "uniformity enjoys virtually universal approval," (162) and one possible explanation for state procedural following is the desire to promote vertical procedural uniformity within a state. States have no power to change the procedure followed by federal courts in their states, and federal actors are unlikely to dismantle the horizontal uniformity of federal procedure in ways that allow federal procedure to mirror the various state procedures. (163) So a state that considers vertical uniformity important might rationally seek to adopt state procedures that mimic federal procedures.

      Vertical procedural uniformity surely has its benefits. (164) Attorneys practicing within a state need only learn one kind of procedure. The breadth of concurrent subject-matter jurisdiction ensures that there will be some overlap between the set of attorneys appearing before state courts and the set of attorneys appearing before federal courts in their state. It is simpler and easier for attorneys, and cheaper and less risky for clients, for the procedural rules among state and federal courts within a single state to be uniform. (165)

      Vertical procedural uniformity also inhibits vertical forum shopping. In cases of concurrent subject-matter jurisdiction, either party usually can select to litigate in federal court. (166) Although the substantive law generally will be the same in either forum, each forum applies its own procedure, which may induce forum shopping for the most favorable procedure. (167) The greater the degree of uniformity between federal and state procedures, the less likely procedural rules will be the basis for vertical forum-shopping by the parties.

      The promise of these benefits offers some explanation for the state procedural following observed in Part I. The proliferation of state procedural rules mirroring the Federal Rules in the decades immediately following the Federal Rules' adoption is consistent with a desire to promote intrastate procedural uniformity to simplify matters for the local bar and dissuade vertical forum shopping. These goals are also consistent with the effort of state courts that have followed the Supreme Court's new pleading standards and with Professor Main's finding that state courts attempt to conform state procedural practice to federal procedural practice, even when state rules differ textually from federal rules. (168)

      The realities of procedural uniformity also help explain some state divergence from the federal lead. Vertical procedural uniformity is relatively easy to achieve if federal procedure is static, or at least changes gradually and predictably; it is far more difficult to maintain, as a practical and political matter, if federal procedural changes are rapid, are numerous, are novel, or themselves erode uniformity. Federal rulemakers are active; despite the difficulty of implementing dramatic rule amendments, (169) the Federal Rules of Civil Procedure are amended almost every year, often...