State Statutory Interpretation and Horizontal Choice of Law

56 Pages Posted: 4 Oct 2021 Last revised: 2 Mar 2022

Date Written: September 10, 2021


Consider this situation. A brings suit in State X, based on a statute promulgated in State Y. State X is a textualist court that doesn’t believe in legislative history. State Y looks to legislative history and A thinks the legislative history points in her favor. Should the court in State X interpret the statute like courts in Y would, or should it stick to its textualist guns?

This problem is really hard. It brings together basic questions of statutory interpretation—outside the federal context where most of the scholarship lies. It also raises questions about whether interpretive method is a kind of “law” and if so what respect states should give to sister jurisdictions’ interpretive methods when reading foreign statutes.

This Article explores the theoretical underpinnings of this question and proposes a doctrinal solution. Rather than offer a uniform approach, however, this Article contends that each state should decide for itself which state’s statutory interpretation methodology controls in any given case. The common thread is that states should subject their choice of statutory interpretation methodology to their own horizontal choice-of-law regimes. The reason—as this Article shows—is that state statutory interpretation methodology, as either state statutory or common law (or both), is one kind of substantive “law.” Like other kinds of conflicting substantive law, therefore, conflicts between competing state statutory interpretation methodologies are ripe for resolution according to a state’s currently employed choice-of-law regime. This Article concludes by discussing the implications of this approach for how state and federal courts alike should think about state statutory interpretation methodology.

Keywords: Statutory interpretation, conflicts of law, choice of law, jurisprudence, state courts, federal courts, Erie, Klaxon

JEL Classification: K4, K41

Suggested Citation

Pohlman, Zachary B., State Statutory Interpretation and Horizontal Choice of Law (September 10, 2021). 70 Kansas Law Review 505 (2022), Available at SSRN:

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