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(Over)Valuing Uniformity

Providing for the uniform interpretation of federal law has long been viewed as a primary goal of the federal court system, and the claimed need for uniformity has shaped the structure of the courts and the scope of their jurisdiction. For example, uniformity has been cited as grounds for broad federal question jurisdiction and for the creation of specialized federal courts. Most visibly, harmonizing interpretation of federal law has become an essential factor in the Supreme Court’s selection of cases for review; 70% of the Supreme Court’s docket is devoted to resolving disagreements over the meaning of federal law. 

This Article questions whether uniformity in and of itself has inherent value, and whether the benefits of eliminating moderate disuniformity in the interpretation of ambiguous federal statutes are worth the costs. Proponents of uniformity claim that divergent interpretations of federal law are unfair to litigants, undermine the legitimacy of federal law, create intolerable conflicts for interstate actors, and lead to forum shopping. The Article explores each argument in turn and finds none to be a compelling reason for federal courts to devote considerable time and resources to maintaining uniformity. For instance, litigants have no basis to claim they were treated unfairly when courts reach different conclusions about the meaning of an ambiguous statute as long as each interpretation is reasonable. Nor is the legitimacy of federal law called into question when judges disagree about the best way to fill gaps or resolve vague provisions in the statutes they construe. Indeed, the doctrine of Chevron deference recognizes, and even promotes, the possibility that ambiguous federal statutes can be construed in a variety of ways. Interstate actors are already required to comply with the varied legal regimes of the fifty states, so adjusting their conduct to accommodate divergent interpretations of federal law is not significantly more disruptive. And if forum shopping is truly a problem (which is questionable), a better solution might be to tighten venue rules rather than expend significant federal judicial resources on standardizing federal law. 

Furthermore, even in the relatively rare cases when uniformity is essential, the federal courts are not the ideal institution to provide it. Congress is responsible for enacting ambiguous laws that produce conflicting judicial interpretations, and Congress is better situated to determine when the benefits of uniformity outweigh the costs of achieving it. Accordingly, this Article contends that courts should avoid expending resources to standardize federal law, and should instead rely on Congress to legislate uniformity when needed.

Prosecuting Batterers After Crawford

Professor Tom Lininger examines the impact of Crawford v. Washington on prosecutions of domestic violence. Prior to Crawford, these prosecutions relied heavily on hearsay, in part because accusers often recant or refuse to testify. Crawford has raised significant doubts about the admissibility of such evidence unless the government provides the accused with an opportunity for cross-examination. 

Professor Lininger surveyed 64 district attorneys’ offices in California, Oregon and Washington to determine the effect of Crawford on domestic violence cases. The counties involved in this survey make up approximately 90 percent of the population in the three states. Nearly two-thirds of the respondents indicated that the Crawford decision significantly impeded prosecutions of domestic violence in their jurisdictions. Moreover, 76 percent of respondents indicated that after Crawford, their offices are more likely to drop domestic violence charges when the accusers recant or refuse to cooperate.

The article suggests legislative reforms that would adapt the states’ evidence codes to the new constitutional requirements of Crawford in order to facilitate effective prosecutions of domestic violence. One category of proposals would maximize opportunities for pretrial cross-examination of accusers. Another set of proposals would expand certain statutory hearsay exceptions. Finally, the author suggests miscellaneous reforms that would better protect battered women before trial, would help juries to understand the psychology of recanting accusers, and would diversify the charges brought by prosecutors so that hearsay statements are not indispensable. 

Choice of Law, the Constitution, and Lochner

The rise and fall of constitutional limits on state choice of law coincides almost perfectly with the so-called Lochner era in Supreme Court history and the connection is by no means accidental. This Note reveals that nearly half of all of the decisions in which the Court used “liberty of contract” reasoning to invalidate state or federal action—including the very first case to do so—dealt not with fundamental economic rights but with choice of law issues. After explaining how the Court’s choice of law doctrines worked, this Note concludes that for the most part they are not susceptible to the traditional criticisms of Lochner. This Note also concludes, however, that although Lochner may not teach us about the choice of law cases, the choice of law cases may help us better understand Lochner. Notions of consent-based political obligation evident in the choice of law cases can reconcile competing interpretations of the Lochner Court’s more controversial substantive due process decisions, while the embrace of legal realism that led the Court in the 1930s to discard its choice of law doctrines suggests that nonpolitical explanations for the abandonment of “Lochnerism” have been underappreciated in accounts of the New Deal Era Constitutional revolution. Choice of law theorists and legal historians alike would do well to revisit the complexities of the Supreme Court’s now-forgotten attempt to address the constitutional limits on the reach of state laws.

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