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June 26, 2009

Statutory Interpretation "rules" as Substantive Law Under Erie

It is interesting to me that federal courts, when interpreting state statutes in diversity cases, apply the statutory interpretation rules of the state whose statute is being interpreted.  A recent decision (not online) illustrates this where the court without analysis stated, "the court must determine how Illinois courts address a statutory interpretation issue of first impression."  Carlson v. Bukovic, 2009 WL 1575548 (N.D. Ill. June 4, 2009).  (I wrote about this a long time ago, too).

My instincts tell me that is right:  it would contravene the basic principle of Erie for a statute to be interpreted differently simply because the parties are citizens of different states and the minimum amount in controversy is present.

But what does it tell us about the "rules" of interpretation?  In Carlson, the court applied the Illinois state courts approach to interpretation (to give effect to intent, but if the text is unambiguous, to end there, but taking a contextual approach to textualism).  Again, no doubt that's right under Erie.  But does that also tell us that, at least in terms of Erie, this is substantive law, not procedural law.  What impact does that have for separation of powers at the state level?  It would seem that the legislature should be able to craft directives to interpretation (as many do) without violating separation of powers principles.  That is, a state legislature could adopt a statute saying "when you interpret our statutes, use a purposive approach."

Anyhow, it continues to be an issue I'm pondering, even though I am not sure I can fully articulate all the possible ramifications, yet.

June 26, 2009 | Permalink


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The Fifth Circuit and I believe that state rules of statutory interpretation are substantive, so that a federal court, sitting in diversity and interpreting a state statute, must apply the (common law or statutory) rules of statutory interpretation of that state. See McNeil v. Time Ins. Co., 205 F.3d 179, 183 (5th Cir. 2000) ("Our analysis of this Texas law begins with statutory construction, a process we approach as a Texas court would.); Gen. Elec. Capital Corp. v. Southeastern Health Care, Inc., 950 F.2d 944, 950 (5th Cir. 1991) ("When this court's jurisdiction is based on diversity and the applicable substantive law is that of Louisiana, we are bound to dispatch our duty of legal interpretation as would a court of Louisiana, relying primarily on Louisiana's Revised Civil Code of 1870 ... and other statutory law, including rules of interpretation contained therein."); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2152 (2002) ("state statutes arrive in federal court with their own homegrown interpretive methodology (whether common law or statutory), which must govern in federal courts").

Posted by: Nicholas Quinn Rosenkranz | Jun 26, 2009 11:15:09 AM

Yes, and I think you are right, as I wrote somewhere a long time ago here.

I believe my-co-author disagreed with you about whether, at the federal level, it would violate the Supremacy Clause for Congress to enact directives (e.g., "interpret our statutes strictly according to text, without regard to intention" or somesuch).

Am I recalling correctly?

Posted by: David | Jun 29, 2009 1:57:18 PM

I am teaching a legal writing class for CLEO students. They are to write a memo discussing whether,under the clear language of the Illinois domestic battery statute, those who "share a common dwelling" would apply to college room mates. The text is unambiguous and would cover room mates, but it would violate the intent for sure. What did you mean by "taking a contextual approach to textualism"? My westlaw/lexis access is down so I won't be able to read the Carlson case until tomorrow.

Posted by: Valery Behan | Jul 1, 2009 9:08:44 PM

There's a literal form of textualism which even strict textualists realize doesn't work. The famous example is some old one about a statute that prohibited the letting of blood in the streets; no judge would say it prohibited a doctor from doing so to try to save someone's life. Context matters, not just literal words. Scalia makes the point several times when dealing with a word that has very different meanings depending on context.

Posted by: David Hricik | Jul 6, 2009 3:54:06 AM

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