Interjurisdictional Enforcement of Rights in a Post-Erie World

The United States may have emerged as the first modern federation, (1) but federalism has since been widely copied elsewhere. (2) Federalism is no longer a political structure that is unique to the United States. An aspect of federalism in the United States that remains distinctive, however, is the existence of a fully developed dual court system. A national judiciary composed of trial and appellate courts co-exists with state judiciaries, which also have trial and appellate benches. Judges in the national courts are chosen by national bodies in accordance with national rules, and judges in state courts are chosen in each state in accordance with the state's rules. The existence of such parallel judicial structures is unusual among federalist nations. Most federalist systems rely on a single set of lower courts, commonly identified with the subnational units, to apply both national and subnational law. (3) In view of the existence of parallel state and federal judicial tracks, the allocation of issues between state and federal courts becomes an important concern. The different structural features of state and federal courts in the United States magnifies the importance of the choice. Among other characteristics, the electoral accountability of most state, but not federal, judges may lead the state and federal courts to develop different perspectives on issues, particularly those relating to hotly contested matters of public policy. (4) The existence of a dual court system creates the possibility of allocating cases based on the law at issue. Federal questions could be sent to federal court and state questions to state court, though of course cases raising both kinds of issues would pose allocational difficulties. Instead, in the United States, the jurisdictions of the state and federal courts overlap extensively. Issues of state law commonly arise in and are adjudicated by federal courts; issues of federal law commonly arise in and are adjudicated by state courts. Such intersystemic adjudication, by which I mean the interpretation by a court operating within one political system of laws of another political system, is pervasive. This Article seeks to situate intersystemic adjudication within the larger framework of federalism in the United States. Federalism today is characterized by a sharing of state and federal power, rather than by a rigid division between state and federal authority. Dual federalism, the idea that the states and the national government each enjoy independent and largely autonomous spheres of authority, has given way to other visions of federalism that contemplate a greater sharing of power. (5) Elsewhere, I have developed the concept of "polyphonic federalism" to describe the appropriate understanding of federalism in the contemporary United States. (6) Polyphonic federalism understands the state and federal governments to be sources of power that are distinctive, but not mutually exclusive. State and federal governments serve as alternative mechanisms for accomplishing ends that legitimately lie within the prerogative of either system. Although conceptions of federalism have changed over time, the basic goals of federalism have remained stable. One of the key purposes of federalism is to offer enhanced protection for individual rights. (7) This Article contends that intersystemic adjudication provides a way for state and federal courts to work together to safeguard important liberties. Many scholars of federal jurisdiction treat intersystemic adjudication as a necessary evil. The verbal formulas vary somewhat, but these scholars express a preference for the courts of a particular legal system interpreting the law of that jurisdiction. (8) Contrary to that general critical backdrop, this Article offers a limited defense of intersystemic adjudication. Specifically, I make two primary arguments in support of intersystemic adjudication. First, I contend that intersystemic adjudication sometimes proves beneficial to the enforcement of rights. …