Abstract

State courts often encounter the statutes of other states. Any encounter with another state’s statutes raises an interesting but inconspicuous question about choice of law. In particular, the interstate encounter presents a choice of interpretive law. Despite some universal practices in statutory interpretation, there are methodological differences across jurisdictions—both at the level of overall approach and in the details of particular interpretive canons. When a state court encounters the statute of a sister state, may the forum state use its own interpretive methods or must it instead use the methods of the enacting state?

The existing doctrine on this choice-of-law question is unclear, primarily because of inattention rather than open disagreement. 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 law that may differ from place to place. Therefore, today’s courts and commentators increasingly view methodology as part of the law that should tag along with state statutes when those statutes come before other courts.

I largely agree that states must honor other states’ interpretive methods, but this Essay seeks to advance our understanding in three ways. First, the Essay grapples with nuances involving whether enacting states mean for their methods—and which aspects of them—to apply in other courts. Second, it addresses situations in which a forum state may have legitimate reasons to resist applying sister-state methodology to a sister-state statute. In such circumstances of true conflict, the best way to honor the sister state may be to avoid adjudicating claims under its law altogether rather than to apply its substantive law in a compromised form. Third, the Essay considers the potential role of the federal courts in modeling and encouraging compliance with the general duty to apply sister-state methodology.

Document Type

Article

Publication Date

11-2022

Publication Information

2022 Wisconsin Law Review 1139-1167

Comments

Written for the symposium Interpretation in the States (2022) at Wisconsin Law School.

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