Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?

By Frost, Amanda | Vanderbilt Law Review, January 2015 | Go to article overview

Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?


Frost, Amanda, Vanderbilt Law Review


I. Introduction

Lower federal court precedent cannot bind state courts, or so we are told. Most state courts assert that they are free to reach their own conclusions about the meaning of federal law, even when doing so creates a conflict with the federal court of appeals presiding over the geographic region in which they sit.1 Several federal circuits have conceded that their decisions are not binding on state courts,2 and, in concurring opinions, two justices have emphatically agreed.3 A number of federal courts scholars have declared that state courts need not follow lower federal court precedent because state courts are "coordinate" with lower federal courts and not "subordinate" to them.4

And yet, upon closer inspection, the role of lower federal court precedent in state court decisionmaking remains unclear. A few state courts appear to believe that they are bound to follow the decisions of the federal courts of appeals on questions of federal law, and many others have issued inconsistent opinions on that question.5 The U.S. Courts of Appeals for the Eighth and Ninth Circuits claim that state courts must follow their lead on federal questions, creating a circuit split that has never been resolved by the Supreme Court.6 Only a handful of legal scholars have opined on the matter, and most have done so in passing in articles devoted to other subjects.7 Remarkably, then, this significant question about the interplay between the state and federal judicial systems lingers unresolved more than two-hundred years after the Constitution's ratification.8

The relationship between the lower federal courts and the state courts raises foundational questions about the place of those federal courts in our constitutional structure. Are the lower federal courts' interpretations of federal law binding on the states under the Supremacy Clause, as the Supreme Court considers its own precedent to be?9 Alternatively, are state and lower federal courts coequals under the Constitution such that neither can control the other's rulings? Does Congress or the Supreme Court have the constitutional authority to require that state courts follow lower federal court precedent? If not, is it because principles of federalism forbid such interference with state institutions, or because such a rule undermines judicial independence, or both?10

Similar foundational questions were raised seventy-five years ago in Erie Railroad v. Tompkins,11 when the Supreme Court overruled Swift v. Tyson12 and held that federal courts must follow state law as articulated by a state's highest court. The Court explained that federal courts undermined state sovereignty by failing to treat state courts' views on state law as controlling.13 Although Erie focused on the federal courts' obligation to adopt state common law, the decision confirmed that federal courts must follow state courts' interpretations of state positive law as well.14 The bottom line after Erie is that state courts have the final word on the meaning of state law.

Erie is one of a handful of iconic cases that has shaped our understanding of not only the relationship between state and federal courts but also our entire federal system. According to John Hart Ely, Erie "implicates, indeed perhaps it is, the very essence of our federalism."15 And yet Erie left the job half done. The case tells us how federal courts should treat state courts' precedent on state law, but it does not address how state courts should respond to federal courts' interpretation of federal law. Of course, some might argue that Erie supports the conclusion that state courts are bound only by the Supreme Court on questions of federal law, just as federal courts are required to follow only the precedent of the highest court of the state on questions of state law. And yet the unique and limited role of the Supreme Court creates a significant disjunction: the Court cannot quickly resolve disputes between state and federal courts on the meaning of federal law, leaving intrastate splits to linger between these court systems for decades. …

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