The Variousness of Federal Law, Part II (Updated)

In response to my post yesterday about a state court’s freedom in filling “gaps” in federal law, Prof. Dorf made a kind and interesting comment on his own blog:

I think that the forum court does not ultimately have the latitude to apply its own law about how to ascertain the foreign state’s law, although in many cases that won’t be a constraint because the foreign state won’t have law on how to ascertain its own law.

Let me illustrate with a further twist. Suppose that in your hypo WA had a state constitutional rule that said that “authoritative advisory opinions of the State Attorney General on the meaning of civil rights laws shall be treated as binding on the courts unless unreasonable.” Now suppose that the NY courts, if applying their own approach, would not give any deference to the WA AG’s construction of WA law but instead would predict what the WA SCt would do based on its past precedents. Shouldn’t it nonetheless treat the AG’s advisory opinions as conclusive if reasonable? And if so, isn’t that because the foreign state’s methods of interpretation are bound up in the foreign state’s laws?

If I’m right about that, then maybe you’re right that I don’t need the Supremacy Clause for the parallel conclusion in the state/federal case.

A few thoughts in response to Prof. Dorf’s new hypothetical:

First, I don’t think a state court’s deference to a sister jurisdiction on content-of-law questions should turn on definitional or technical distinctions. In other words, what is the difference between (1) Prof. Dorf’s hypothetical Washington rule that the state AG’s office fills in the gaps, (2) a state constitution that includes a Super-Supreme Court above the Supreme Court that issues binding advisory opinions on matters not-yet-decided by the Supreme Court via actual cases, or (3) a state constitution that calls its highest court the Court of Appeals? I don’t see much of a difference. If the forum court’s usual content-of-law rule is “We look to the state’s statutes or the binding law of the state Supreme Court,” then the fact that a given state has set up something other than a “Supreme Court” as its highest law-determiner should not alter the forum court’s task.

But that brings up a second, more important point: Prof. Dorf’s hypothetical demonstrates that there is third analysis I missed with my choice-of-law vs. content-of-law distinction. Between the choice-of-law question and the content-of-law question the forum court must ask: Is there actually a gap in the forum state’s law? If there is no gap, then there is no space for the forum court to apply its own content-of-law doctrines.

Therefore, in the case of Prof. Dorf’s hypothetical about the state AG’s office, the forum state’s error is not with its gap-filling content-of-law rules, but with its implied determination that a gap exists in the first place. Under the hypothetical Washington law, if the state AG has issued a ruling then there is no gap to fill.

This middle step—determining whether there is a gap—does implicate the foreign law’s interest. If the foreign law is a state, then the Full Faith and Credit Clause would limit the forum state’s analysis on that point. And if the foreign law is federal, then the Supremacy Clause controls. (So, for example, a state could not say there is a “gap” in federal law because it refuses to recognize the Supreme Court’s abortion decisions, or Title 15 of the U.S. Code.)

But that still leaves the question of what to do when the forum state properly determines that there is a gap. Once the forum court gives proper deference to the Supremacy Clause or the Full Faith and Credit Clause on step one (the choice-of-law question) and step two (the existence-of-gap question) then I still don’t see much reason to allow for a sister-state or federal interest in answering step three’s content-of-law gap-filling question. (Of course, I would allow for some general Due Process Clause limitations here. I doubt a state could adopt a “we flip a coin” rule or “whoever is alphabetically first wins” rule to fill gaps in a foreign jurisdiction’s law. But that limit has nothing to do with the foreign jurisdiction’s law/interest in the content of the gap-filling rule.)

Lastly, none of this is limited to problem of determining the content of constitutional or common-law doctrines. The same problem arises when a forum court is forced to interpret another jurisdiction’s statutory law. Should (must?) the forum court use the foreign jurisdiction’s preferred method of statutory interpretation? When Justice Scalia was trying to determine the scope of New York State’s class-action rules in Shady Grove, should he have used the New York law of statutory interpretation, even if New York judges routinely look to legislative history? Abbe Gluck has written an excellent article on this question.

Anyway, that’s all for now. As always, comments and responses appreciated!


So Prof. Dorf responded to this post:

David: I think we are now in pretty much complete agreement. If the foreign jurisdiction has laws for determining its own law’s content, then the forum court should apply those. If there’s a gap, then I agree that it’s permissible for the forum court to use its own methods for figuring out what the foreign jurisdiction’s law is–but perhaps that’s because this is simply what it means for there to be a gap.

Great! So where are we now? Do we agree b/c we’ve actually figured something out here? Or do we agree because there’s actually nothing interesting going on here? I’ll leave that to the reader.


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