INTERPRETING PRECEDENT INTERJURISDICTIONALLY

40 Pages Posted: 24 Oct 2018 Last revised: 20 Jul 2020

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Date Written: August 20, 2018

Abstract

Judges often have to interpret and apply the precedent of other jurisdictions. For example, federal courts apply state judicial decisions when they exercise diversity or supplemental jurisdiction. When a court applies the precedent of another jurisdiction, does the court also apply that other jurisdiction’s methods of interpreting precedent? Should it? This Article defends the counterintuitive claim that a judge can have a duty to apply another jurisdiction’s precedent without having a corresponding duty to apply the other jurisdiction’s interpretive norms. I begin by presenting a descriptive account of interpretive methodology in the context of precedent, explaining how methods of interpreting precedent can and do differ across courts and jurisdictions, just like methods of interpreting statutes and constitutions. I show that, in practice, courts often acknowledge that they have a duty to apply the substantive precedent of another jurisdiction without recognizing an obligation to apply the other jurisdiction’s methods of interpretation. I then present my theoretical account of interpretation, demonstrating how different theories of law generate different answers to the question of whether and when a law-applying court is bound by the interpretive methods of the law-supplying jurisdiction. This Article thus illustrates, for the first time, the relevance of analytical jurisprudence to a critical and ubiquitous quandary in conflicts of law. If we wish to make progress on the conflicts of law problem, I suggest, we cannot ignore its jurisprudential underbelly. Although the Article focuses on the relationship between state and federal courts in the U.S., its argument should extend to any context where courts in one jurisdiction apply a different jurisdiction’s law, and so the conclusions I reach have critical implications for our legal system as well as others.

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

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

Suggested Citation

Varsava, Nina, INTERPRETING PRECEDENT INTERJURISDICTIONALLY (August 20, 2018). Univ. of Wisconsin Legal Studies Research Paper No. 1495, Available at SSRN: https://ssrn.com/abstract=3238221 or http://dx.doi.org/10.2139/ssrn.3238221

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

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