Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law? Amanda Frost* The conventional wisdom is that state courts need not follow lower federal court precedent when interpreting federal law. Upon closer inspection, however, the question of how state courts should treat lower federal court precedent is not so clear. Although most state courts now take the conventional approach, a few contend that they are obligated to follow the lower federal courts, and two federal courts of appeals have declared that their decisions are binding on state courts. The Constitution’s text and structure send mixed messages about the relationship between state and lower federal courts, and the Supreme Court has never squarely addressed the matter. Remarkably, 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. This Article uses this question to explore the relationship between state and lower federal courts. As a constitutional matter, it can be argued that state courts were intended to play a subordinate role to the lower federal courts when interpreting federal law, even if they are viewed as equals when it comes to finding facts and applying facts to law. Furthermore, Congress’s decision to create the lower federal courts, and then assign them broad federal question jurisdiction, arguably displaces state court authority to interpret federal law independently—particularly in an era in which the Supreme Court lacks the capacity to resolve many of the splits between the federal and state court systems. Finally, as a practical matter, allowing state courts to diverge from lower federal court precedent on matters of federal law can create disruptive intrastate conflicts that lead to forum shopping and can sometimes take years to resolve. * Professor of Law, American University Washington College of Law. I received valuable comments from Howard Erichson, Abner Greene, Heather Hughes, Amanda Leiter, Jim Pfander, Steve Vladeck, and the participants in Fordham Law School’s Faculty Workshop Series and Loyola Constitutional Law Colloquium. A special thanks to Erica Tokar for terrific research assistance. 53 54 VANDERBILT LAW REVIEW [Vol. 68:1:53 Although state courts are unlikely to reverse course and declare that they are bound by the decisions of the lower federal courts, both Congress and the Supreme Court arguably have the authority to require that they do so. The Article concludes by describing the source of these institutions’ authority over state courts, as well as the costs and benefits of requiring state courts to follow lower federal court precedent. I. INTRODUCTION .................................................................... 55 II. STATE COURT TREATMENT OF LOWER FEDERAL COURT PRECEDENT ............................................................. 62 A. The State Courts ...................................................... 62 B. The Federal Courts of Appeals ................................. 64 C. The Supreme Court .................................................. 65 D. The Academic Literature .......................................... 67 E. Conclusion ............................................................... 69 III. THE STATE COURTS, THE LOWER FEDERAL COURTS, AND THE CONSTITUTIONAL HIERARCHY ....................................... 69 A. State and Lower Federal Courts in the Constitutional Hierarchy ......................................... 70 1. Origins of the Problem: The Madisonian Compromise .................................................. 70 2. The Evolving Role of the Lower Federal Courts .............................................. 73 a. The Expansion of the Lower Federal Courts .................................... 73 b. The Evolution of State Judicial Elections ............................... 74 3. Rebutting Counterarguments........................ 75 a. The Significance of Concurrent Jurisdiction ........................................ 76 b. The Significance of Revisory Review ................................................ 77 B. The Disconnect Between Hierarchy and Precedent ... 79 C. Conclusion ............................................................... 80 IV. FEDERAL AUTHORITY TO REQUIRE STATE COURTS TO FOLLOW LOWER FEDERAL COURT PRECEDENT ..................... 81 A. The Sources of Congress’s Authority to Control the Rules of Precedent in State Courts ........................... 81 1. The Inferior Tribunals Clause and the Sweeping Clause ........................................... 81 2. Congress’s Power to Control Interpretation of Its Enactments .......................................... 84 2015] INFERIORITY COMPLEX 55 B. The Sources of the Supreme Court’s Authority to Control the Rules of Precedent in State Courts ......... 85 C. Limits on Congress’s and the Supreme Court’s Authority to Control the Rules of Precedent in State Courts ............................................................. 87 1. Limitations Imposed by State Sovereignty .... 87 2. Limitations Imposed by Judicial Independence ................................................ 89 D. Conclusion ............................................................... 91 V. THE COSTS AND BENEFITS OF INTERSYSTEMIC STARE DECISIS .................................................................... 91 A. The Costs of Allowing State Courts to Diverge from Precedent Set by Their Regional Federal Court of Appeals....................................................... 92 1. Uniformity .................................................... 92 2. Forum Shopping ............................................ 94 3. Rule of Law ................................................... 95 4. Parity ............................................................ 96 5. Conserving Judicial Resources ...................... 99 B. The Benefits of Allowing State Courts to Diverge from Precedent Set by Their Regional Federal Court of Appeals....................................................... 99 1. Percolation .................................................. 100 2. Autonomy .................................................... 102 C. Conclusion ............................................................. 102 VI. CONCLUSION ..................................................................... 103 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 1. See, e.g., Danner v. MBNA Am. Bank, N.A., 255 S.W.3d 863, 868 (Ark. 2007) (“[D]ecisions of the federal circuit courts are not binding on this court . .”); Abela v. Gen. Motors Corp., 677 N.W.2d 325, 327 (Mich. 2004) (“Although state courts are bound by the decisions of the United States Supreme Court construing federal law . there is no similar obligation with respect to decisions of the lower federal courts.”). For a detailed discussion of state court treatment of lower federal court precedent, see infra Part II. 56 VANDERBILT LAW REVIEW [Vol. 68:1:53 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 2. See, e.g., Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992) (“[T]he Supremacy Clause did not require the Illinois courts to follow Seventh Circuit precedent interpreting the Fifth Amendment.”); see also Bromely v. Crisp, 561 F.2d 1351, 1354 (10th Cir. 1977) (“[T]he Oklahoma Courts may express their differing views on the retroactivity problem or similar federal questions until we are all guided by a binding decision of the Supreme Court.”); Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965) (“Though state courts may for policy reasons follow the decisions of the Court of Appeals whose circuit includes their state . they are not obliged to do so.”). 3. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring); Steffel v. Thompson, 415 U.S. 452, 482 n.3 (1974) (Rehnquist, J., concurring). See infra Part II.C for further discussion of the Supreme Court’s jurisprudence on this question. 4. See, e.g., Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 YALE L.J. 1898, 1904 (2011) (“[B]ecause the state supreme courts are coordinate (not inferior) to the federal courts of appeals on matters of federal law, state courts have no obligation to harmonize their interpretive choices with the decision