Measuring Circuit Splits: A Cautionary Note

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, exacerbates the problems. Third, real precision may be infeasible given the nature of the enterprise

Interpreting State Statutes in Federal Court

This Article addresses a problem that potentially arises whenever a federal court encounters a state statute. When interpreting the state statute, should the federal court use the state’s methods of statutory interpretation—the state’s canons of construction, its rules about the use of legislative history, and the like—or should the court instead use federal methods of statutory interpretation? The question is interesting as a matter of theory, and it is practically significant because different jurisdictions have somewhat different interpretive approaches. In addressing itself to this problem, the Article makes two contributions. First, it shows, as a normative matter, that federal courts should generally use state methods, though there should be exceptions in situations in which using state methods would impair federal interests or depart from the state’s own understanding of its methodology’s scope. Second, the Article shows, through a systematic review, that federal courts are mostly applying state interpretive approaches today, a conclusion that runs contrary to the views of other commentators