Beyond Substance and Procedure: Precedent, Interpretation, and the Limits of Erie

66 Pages Posted: 24 Oct 2018 Last revised: 13 Jan 2020

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Date Written: August 20, 2018


This Article presents a novel theory of interpretive methodology and precedent, which serves to explain (1) why judges, in practice, often reject or ignore interpretive directives from law-supplying jurisdictions and institutions, and (2) the common intuition that some sort of interpretive autonomy or independence is integral to the judicial role. Focusing on the relationship between state and federal courts in the U.S., I argue that states do not have a legal right to dictate how federal courts will interpret their judicial decisions. Likewise, states are not subject to any blanket legal duty to apply federal methods of interpretation to federal questions. In other words, methods of interpretation do not travel with the underlying law they are designed to interpret; a judge can have a duty to apply another jurisdiction’s case law, then, without having a corresponding duty to apply the other jurisdiction’s interpretive norms. As a descriptive matter, I show that courts have been spotty at best in attempting to apply Erie to methods of interpreting case law. And I argue, on conceptual grounds, that these methods are neither procedural nor substantive law for Erie purposes: they elude the Erie framework altogether. This is because, basically, a judge’s interpretive methodology will depend on her theory of law. Judges are entitled to maintain and operate under their own theories of law, regardless of the jurisdictional source of the law that they have the task of interpreting. This is not to say that all theories of law or methods of interpretation are equally valid, but only that the practices or preferences of a law-supplying jurisdiction do not finally determine the validity of the theories and methods embraced by the judges responsible for applying that jurisdiction’s law in a given case. This Article’s account of interpretation poses fundamental challenges to conventional views of Erie and reverse-Erie, the Supremacy Clause, federalism, and also choice of law and the principle of comity.

Keywords: Procedure, Jurisprudence, Interpretation, Precedent, Judicial Role, Jurisdiction, Conflicts of Law, Erie, Federalism, Federal Courts, State Courts

JEL Classification: K00, K10, K15, K40, K41

Suggested Citation

Varsava, Nina, Beyond Substance and Procedure: Precedent, Interpretation, and the Limits of Erie (August 20, 2018). Univ. of Wisconsin Legal Studies Research Paper No. 1495. Available at SSRN: or

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States


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