Below is the abstract for “Improving (and Avoiding) Interstate Interpretive Encounters,” available for download on SSRN.
State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting, though easy to overlook, question of choice of law. In particular, the interstate encounter raises a question of choice of interpretive law. While there are some universal practices in statutory interpretation, there are methodological differences across jurisdictions too, both at the level of overall approach and in the details of particular interpretive canons or tools. When a state court encounters the statute of a sister state, may the forum state use its own interpretive method or must it instead use the method of the enacting state?
The existing law on this choice-of-law question is unclear, not primarily because of open disagreement but instead because of inattention. The inattention is understandable given the historical understandings of interpretive methodology as either universal law, an application of evidence law, or not real law at all. But those old conceptions of interpretive methodology have been changing, with methodology lately coming to be seen as more or less ordinary substantive law that may differ from place to place. Today’s courts and commentators therefore increasingly view methodology as part of the law that should tag along with state statutes when those statutes make their way into other courts.
I largely agree with that gathering modern view according to which states must honor other states’ interpretive methods, but this paper seeks to advance our understanding in two ways. First, the paper addresses situations in which a state court may have legitimate reasons to resist applying sister-state methodology to a sister-state statute. In those circumstances, the best way to honor the sister state may be not to apply its substantive law in a compromised form but instead to avoid adjudicating claims under its law altogether. Second, the paper considers the potential role of the federal courts in modeling and encouraging compliance with the general duty to apply sister-state methodology.