Introduction

State courts are the final arbiters of state law. The U.S. Supreme Court has long respected state courts’ authority to say what their law means, “whether statutory or otherwise.”¹See Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 626 (1874). But cf. Moore v. Harper, 143 S. Ct. 2065, 2088 (2023) (“[W]e have an obligation to ensure that state court interpretations of [state] law do not evade federal law.”). State courts themselves like to remind the federal courts of this fact.²E.g., Jones v. Commonwealth, 795 S.E.2d 705, 712 (Va. 2017); Harrison v. Ins. Co. of N. Am., 318 So. 2d 253, 254 (Ala. 1975). And, sometimes, a state court will even reject a federal court’s interpretation of its state’s statute.³Compare Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 536 (2021) (“[T]he licensing-official defendants are charged with enforcing [the Act].”), with Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022) (“Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.”).

One might think, given the ferocity with which state courts guard their role as the ultimate expositors of state law, that state courts would forge a path of interpretive independence, gladly shirking what federal courts have to say about how to read statutes. Yet actual state court practice paints quite a different picture: far from ignoring or discrediting federal interpretive law, state courts frequently “borrow” the statutory interpretation methodology employed by the federal courts, particularly that of the U.S. Supreme Court. And while state courts interpreting state statutes are free to “reject” federal interpretive principles, they almost never do so.

A few examples help set the scene: state courts taking a textualist approach to interpretation often rely on the Court’s explanation of the theory in Bostock v. Clayton County,⁴140 S. Ct. 1731 (2020). state interpretive law notwithstanding;⁵Infra Section II.B.1. state courts recognizing linguistic canons of interpretation for the first time often cite Supreme Court explanations of the canon rather than sister state case law or well-known legal treatises;⁶Infra Section II.C.1. and state courts wrestling with the question whether to afford deference to a state agency’s interpretation of a state statute often doing so by analyzing the Chevron⁷Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); infra Section II.C.3. doctrine.

This Article describes, theorizes, and offers a partial defense of the curious and previously underexplored phenomenon of state-federal borrowing of statutory interpretation methodology. Since its revival in the late 1970s, the field of statutory interpretation has paid almost singular attention to the statutory interpretation methodology applied by the U.S. Supreme Court. The theoretical wars that are waged at the Court and in the literature have become predictable; scholars wonder whether we have reached an interpretive impasse.⁸See, e.g., Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1280, 1352 (2020); Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 3 (2006). The same cannot be said of the state courts and lower federal courts. In the past decade, scholars have begun to focus their energy on the “rest of the iceberg,” exploring the questions unique to the courts where the vast majority of on-the-ground statutory interpretation takes place.⁹Aaron-Andrew P. Bruhl, Statutory Interpretation and the Rest of the Iceberg: Divergences Between the Lower Federal Courts and the Supreme Court, 68 Duke L.J. 1, 6–7 (2018); see, e.g., Aaron-Andrew P. Bruhl, Improving (and Avoiding) Interstate Interpretive Encounters, 2022 Wis. L. Rev. 1139, 1141–42 (2022); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 Cornell L. Rev. 433, 434–36 (2012) [hereinafter Bruhl, Hierarchy and Heterogeneity]; Anuj C. Desai, Modified Textualism in Wisconsin: A Case Study, 2022 Wis. L. Rev. 1087, 1089–90 (2022); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754–55 (2010); Zachary B. Pohlman, State Statutory Interpretation and Horizontal Choice of Law, 70 Kan. L. Rev. 505, 507 (2022); Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 Tex. L. Rev. 479, 481 (2013). In casting light on the near-ubiquitous practice of state-federal borrowing of interpretive methodology, this Article makes an important contribution to the budding field of state-specific statutory interpretation theory. It also engages with an emerging subfield of federalism scholarship that documents when state courts decide to apply (or reject) federal law, even when not legally required to.¹⁰Infra Section I.A.

This Article proceeds in four Parts.

Part I is definitional. It first describes cross-jurisdictional “borrowing.” In short, state-federal borrowing occurs when a state chooses—but is not required—to apply some aspect of federal law as state law. Part I then defines “federal statutory interpretation methodology,” which in simple terms, refers both to the high-level theories and granular interpretive tools that the federal courts invoke when construing statutes. Thus, state-federal methodological borrowing occurs when a state court, in interpreting a state statute, applies federal interpretive principles to decide what the state statute means.

Part II is descriptive. It shows that methodological borrowing is commonplace in the world of state court statutory interpretation. State courts, even when they have state-level interpretive principles on point, choose to borrow federal interpretive tools of all kinds. Sometimes states borrow the substantive holdings of federal statutory interpretations; other times they borrow a particular interpretive principle without regard for whether it is a linguistic canon, substantive canon, or overarching theory of interpretation. And even when state courts seemingly “reject” federal interpretive law, they almost always rely on critiques of the rejected federal tool first hashed out by federal judges in separate opinions. Thus, even when state courts decide not to follow a particular federal interpretive tool, they nonetheless borrow arguments against it that were first developed at the federal level.

Part III is both explanatory and normative. Though state-federal borrowing in statutory interpretation is pervasive, neither state courts nor scholars have sought to justify the practice. Part III offers four reasons that may explain why state courts so often borrow federal interpretive law: (1) methodological borrowing increases the perceived legitimacy of state court statutory interpretations; (2) methodological borrowing shows that state and federal courts each approach texts in a shared American interpretive tradition, or, depending on one’s jurisprudential priors, apply the same general law of interpretation in interpreting statutes; (3) federal law is more familiar and is viewed as more prestigious than state law; and (4) judicial politics incentivizes state court jurists to borrow federal interpretive law.

Part III concludes by offering a qualified defense of state-federal methodological borrowing. Briefly, though differences in law and institutional capacities exist, state-federal borrowing is still normatively desirable. Federal interpretive methodology offers a storehouse of well-theorized interpretive tools for state courts to draw from, especially when state interpretive tools run out. State courts are better off giving reasons for their decision to borrow federal interpretive law, especially when the federal interpretive tool derives from federal constitutional principles that may not apply in the states. But even when state courts do not explain their decision to borrow, the bench and bar benefit when statutory interpretation methodology at the state and federal levels resembles each other, and borrowing is one way to move toward more uniform methods of statutory interpretation across all courts. Borrowing thus promotes many of the documented benefits of methodological precedent: as state and federal methods of interpretation mirror each other more, statutory interpretation will become more predictable, simpler, and more efficient.

Part IV situates state-federal borrowing into a larger conversation about formalism in statutory interpretation. It suggests that permissive methodological borrowing is the latest data point evincing a trend toward more formalist modes of interpretation in two distinct ways. First, because federal interpretive methodology is increasingly textualist, state court interpretive theory—shaped by the federal approach—is also increasingly textualist. And second, textualism aside, state courts’ willingness to borrow preexisting legal tools from the federal courts shows their growing keenness for constraint in statutory interpretation. Rather than reason from first principles to address interpretive questions of first impression in their state, state courts instead apply well-worn federal interpretive law, self-imposing limits on their interpretive freedom and revealing their fondness for formalism.

I.      Borrowing Federal Interpretive Methodology

This Article studies when, how, and why state courts choose to use federal statutory interpretation methodology to interpret state statutes. This Part advances the discussion in two ways. First, it describes an emerging subfield of federalism scholarship that looks at state-federal “borrowing.” Second, this Part explains the concept of “federal interpretive methodology” and why it is just the kind of thing that state courts may decide to borrow.

A.       Federalism and Borrowing Foreign Law

One jurisdiction “borrows” a foreign jurisdiction’s law when it chooses to apply the foreign jurisdiction’s law as its own.¹¹Others have used the term “adopting” rather than “borrowing” to explain the same phenomenon I lay out here. See, e.g., Kevin M. Clermont, Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law, 103 Cornell L. Rev. 243, 270–72 (2018). Cross-jurisdictional borrowing admittedly takes place on a variety of planes. This Article is concerned with borrowing between the federal and state governments, with a specific focus on borrowing between federal and state courts. The federal courts rarely draw upon state law unless legally obliged to do so by the Erie¹²Erie R.R. v. Tompkins, 304 U.S. 64 (1938). doctrine or federal statute.¹³See Joseph Blocher, Reverse Incorporation of State Constitutional Law, 84 S. Cal. L. Rev. 323, 325–26, 336 (2011); cf. Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503, 521–23 (2006) (showing that federal courts sometimes refer to state law, but merely to define common-law terms in federal statutes). State courts, on the other hand, often willingly apply federal law as state law.¹⁴See Scott Dodson, The Gravitational Force of Federal Law, 164 U. Pa. L. Rev. 703, 711–19 (2016). Thus, while voluntary state-federal borrowing could theoretically run in either direction, the focus of this Article is on state courts that borrow federal decisional law. This Section elaborates on the concept of cross-jurisdictional borrowing and explains why a state might choose to borrow (or decline to borrow) federal law.

Cross-jurisdictional borrowing itself is not new. One branch of the international law literature, for example, concerns itself with “constitutional borrowing,” which considers how constitutional drafters incorporate foreign law into their own fundamental law despite differences in politics, law, and culture.¹⁵E.g., Vlad Perju, Constitutional Transplants, Borrowing, and Migrations, in The Oxford Handbook on Comparative Constitutional Law 1304, 1305 (Michel Rosenfeld & András Sajó eds., 2012); Vlad Perju, Cosmopolitanism in Constitutional Law, 35 Cardozo L. Rev. 711, 714–16 (2013); Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, 1 Int’l J. Const. L. 244, 244–45 (2003); Frederick Schauer, On the Migration of Constitutional Ideas, 37 Conn. L. Rev. 907, 907–08 (2005); see also Thomas B. Bennett, State Rejection of Federal Law, 97 Notre Dame L. Rev. 761, 774 (2022) (summarizing the literature). Others have defined “constitutional borrowing” as “importing doctrines, rationales, tropes, or other legal elements from one area of constitutional law into another for persuasive ends.” Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 459, 461 (2010). Similarly, others study how states borrow the law of other states, both in terms of statutory and constitutional drafting¹⁶E.g., Marsha L. Baum & Christian G. Fritz, American Constitution-Making: The Neglected State Constitutional Sources, 27 Hastings Const. L.Q. 199, 207–08 (2000); Christian G. Fritz, The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, 25 Rutgers L.J. 945, 975–84 (1994); Jack Stark, A Practical Guide to Drafting State Constitutional Provisions, 73 Temp. L. Rev. 1061, 1076 (2000). and decisional law.¹⁷E.g., James N.G. Cauthen, Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations, 66 Ala. L. Rev. 783, 783–84 (2003). Importantly, state-to-state borrowing, like international constitutional borrowing, is permissive, not mandatory. For example, although the Full Faith and Credit Clause¹⁸U.S. Const. art. IV, § 1. and Privileges and Immunities Clause¹⁹Id. § 2. certainly implicate state-to-state relations, they do not involve questions of “borrowing”—a state is not free to ignore the dictates of the Federal Constitution, even though it may ignore another state’s constitution when drafting or interpreting its own.

While related to constitutional and state-to-state borrowing, this Article focuses on a third kind of borrowing: borrowing between the state and federal governments. First, a word on what state-federal borrowing is not. It is not the law of the Supremacy Clause, under which state laws contrary to the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof” are preempted by federal law.²⁰Id. art. VI, cl. 2. A state that borrows federal law, then, chooses to apply federal law as state law; borrowing does not concern instances in which a state is legally obliged to apply federal law qua federal law. Rather, this Article understands borrowing to encompass those situations in which a state’s choice to follow federal law derives, as one scholar put it, “not from legal compulsion but rather from allurement.”²¹Dodson, supra note 14, at 705. On this view of borrowing, federal law serves “as a model” for state law that states may borrow, reject, or altogether ignore.²²Bennett, supra note 15, at 811 (emphasis omitted).

Two recent scholarly projects highlight instances in which states have explicitly borrowed (or refused to borrow) federal law. Professor Scott Dodson has argued that, in several areas covering both substantive and procedural law, federal law exerts a “gravitational pull” on state legislatures, rule-makers, and courts that lures them into following federal law.²³Dodson, supra note 14, at 705. He identifies resource conservation, a desire for vertical uniformity, and state-level politics as possible explanatory vectors for states’ willingness to borrow federal law.²⁴Id. at 730–36, 739–44. Professor Thomas Bennett, on the other hand, found at least three instances where states have rejected federal law rather than embrace it as their own.²⁵Bennett, supra note 15, at 767. Bennett points to the characteristics of the federal law at issue and the political motivations of the relevant state actors as the primary factors that determine whether a state chooses to depart from federal law on matters of state law.²⁶Id. at 810–18.

Though their scholarship features different sides of the state-federal borrowing coin, Dodson and Bennett agree, as a normative matter, that states should not always adopt federal law as state law.²⁷See Dodson, supra note 14, at 752–53; Bennett, supra note 15, at 818–21. Dodson urges states to resist the gravitational pull of federal law, and instead encourages them to exercise “greater introspection” and “independence” in making state law.²⁸Dodson, supra note 14, at 752. He claims that doing so will allow for greater innovation in the law and will help to ensure that a state’s policies more closely reflect the preferences of its electorate.²⁹Id. at 746–47. Dodson also candidly acknowledges, however, that sometimes a state’s informed choice to mirror federal law is the prudent one—diverging from federal law for the sake of diverging is not the point.³⁰Id. at 752. In his words, “reasoning matters more than results.”³¹Id. Like Dodson, Bennett is sanguine about the benefits to our federalist system when state actors take an approach inconsistent with a course charted originally by the federal courts. The “folklore of federal law’s supremacy,” he warns, “has impoverished the collective imagination about state law’s potential.”³²Bennett, supra note 15, at 821.

For substantive legal doctrines that may be the case—but is the same true of borrowing methodological law? Except for a few scholarly accounts that address statutory interpretation in the state court context,³³See infra Part III. the literature on state-federal borrowing has largely focused on substantive legal doctrines. This Article thus brings to the fore an understudied phenomenon within our federalist system: that of state courts that willingly borrow federal statutory interpretation methodology. The practice, as will be seen, is almost ubiquitous, and even those questioning the propriety of borrowing substantive legal doctrines may find themselves singing a different tune on matters of interpretation. But to understand the “when” and the “why” of state courts’ borrowing federal interpretive law, this Article first must clarify the “what”—namely, the borrowing of “federal statutory interpretation methodology.”

B.      Borrowing Federal Statutory Interpretation Methodology

When deciding statutory cases, the federal courts apply a host of what the Supreme Court has called, among other things, rules,³⁴Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1169–70 (2021). principles,³⁵TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). maxims,³⁶Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). tools,³⁷Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). and canons³⁸Nielsen v. Preap, 139 S. Ct. 954, 969 (2019). of statutory interpretation. For simplicity’s sake, this Article uses these terms interchangeably and most often stick with “tools.” Many of them are quite familiar—the plain meaning rule, the rule of lenity, and the Chevron doctrine, to name a few. These various tools constitute individual tesserae of the larger mosaic that is “federal statutory interpretation methodology.”

Recent scholarship in the field of statutory interpretation has sought to theorize the legal status of this methodology, and scholars have approached the question from three distinct jurisprudential schools of thought. First, Professor Abbe Gluck argues that federal interpretive methodology is one kind of judge-made “federal common law” that ought to receive precedential effect, even if it presently consists of an “open menu” of various interpretive tools to which courts generally do not seem to afford precedential effect.³⁹Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 Wm. & Mary L. Rev. 753, 771–75, 807 (2013) [hereinafter Gluck, Age of Statutes]; Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1968 (2011) [hereinafter Gluck, Intersystemic]. At the state level, however, many state courts do attach formal stare decisis effect to statutory interpretation methodology. See Gluck, supra note 9, at 1754; Zachary B. Pohlman, Note, Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble, 95 Notre Dame L. Rev. 1731, 1749–52 (2020). Professor Aaron-Andrew Bruhl agrees with the judge-made jurisprudential model of interpretive methodology,⁴⁰See Aaron-Andrew P. Bruhl, Communicating the Canons: How Lower Courts React When the Supreme Court Changes the Rules of Statutory Interpretation, 100 Minn. L. Rev. 481, 489, 492, 507 (2015) (discussing “generating,” “making,” and “creat[ing]” interpretive methodology by the federal courts). but he has suggested that federal “methodological precedent” already receives far greater stare decisis effect than Gluck and others have assumed.⁴¹Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 126–58 (2020). Second, approaching interpretive methodology with jurisprudential assumptions that differ from those of Gluck and Bruhl, Professors William Baude and Stephen Sachs see the “law of interpretation” as a form of unwritten “general law.”⁴²William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1137–38 (2017). On their view, the general law of interpretation “emerges from patterns followed in many different jurisdictions,” such that the tools of interpretation are “judge-found” as opposed to “judge-made.”⁴³Id. at 1137 n.340 (quoting Nelson, supra note 13, at 503). A third approach rejects that interpretive methodology is “law” at all and is rather a matter of personal preference.⁴⁴See generally Jonathan Remy Nash, When Is Legal Methodology Binding?, 109 Iowa L. Rev. 739 (2024) (explaining the factors influencing when interpretive methodologies are binding). Even on that view, however, by piecing together the federal courts’ various methodological pronouncements, one might reasonably be able to identify, as a descriptive matter, a “common law of interpretation” (i.e., what this Article calls “federal interpretive methodology”).⁴⁵Christopher J. Baldacci, Note, The Common Law of Interpretation, 108 Va. L. Rev. 1243, 1255 (2022) (“Over time, a series of cases can elucidate underlying norms and converge on a consensus approach to interpretation.”). There are certainly important differences among these three theories, and the implications of those differences are explored below.⁴⁶Infra Section III.A.2. The takeaway, for now, is that there is such a thing as federal interpretive methodology.

The relevant question at this stage is not what kind of law federal interpretive methodology is in the abstract (if it is “law” at all), but the legal effect that any particular federal interpretive tool has on state law. It is helpful here to distinguish between state courts interpreting federal statutes and state courts interpreting state statutes. In the former situation, some aspects of federal interpretive methodology are mandatory. The Dictionary Act, for example, provides a list of definitions and rules that courts are to use “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.”⁴⁷1 U.S.C. § 1. E.g., City of Chicago v. Wendella Sightseeing, Inc., 2019 IL App (1st) 181428, ¶ 29, 143 N.E.3d 771, 778; Phone Recovery Servs., LLC v. Verizon of New England, Inc., 102 N.E.3d 968, 973 (Mass. 2018); Smith v. Dep’t of Pub. Health, 410 N.W.2d 749, 767 (Mich. 1987), aff’d sub nom. Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989). So, state courts interpreting federal statutes cannot “reject” the Dictionary Act. Certain other federal tools of interpretation may be understood as constitutionally required⁴⁸Though they are unlikely to be raised in state courts, consider, for example, the clear statement rule to waive sovereign immunity in federal court, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996), the narrow reading of federal criminal statutes, see Bond v. United States, 572 U.S. 844, 848 (2014), and the Ninth Amendment itself. U.S. Const. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (emphasis added)). or as part of the substance of federal statutes.⁴⁹See Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.”); Phillips v. Chi. Cent. & Pac. R.R., 853 N.W.2d 636, 647–52 (Iowa 2014) (applying Chevron in interpreting federal statute). The extent to which preemptive federal methodology follows federal statutes is debated, and is interesting in its own right, but it is not this Article’s concern.

Rather, this Article explores how state courts interpret their own statutory law. Here, there is little in the way of federal law that applies, especially given that the Supreme Court has long eschewed any “supervisory power over the courts of the several States.”⁵⁰Dickerson v. United States, 530 U.S. 428, 438–39 (2000); see Zachary B. Pohlman, The Sineneng-Smith Doctrine, 14 Fed. Cts. L. Rev. 106, 153–55 (2022). In other words, state courts can interpret state statutes using almost any methodology they like (Due Process is always a constraining principle, of course.) And so it is here—state courts interpreting state statutes—that the possibility of voluntary borrowing of federal interpretive methodology comes to the fore. The possibility of state-federal borrowing, and the concomitant possibility of rejection, raises questions that this Article sets out to answer—namely, when, how, and why state courts borrow federal interpretive law,⁵¹See supra Part II and Section III.A. whether state-federal methodological borrowing is normatively desirable,⁵²See supra Section III.B. and what such borrowing may portend for the field of statutory interpretation as a whole.⁵³See supra Part IV.

II.      Federal Interpretative Methodology in State Court

This Part explores the “when” and “how” of state-federal methodological borrowing.

A.      Borrowing (and Rejecting) Substantive Interpretations

State courts borrow from federal cases that interpret federal statutes in two main ways. The first is by applying federal interpretive methodology as such, even when the respective state and federal statutes concern entirely different areas of law. Borrowing of this sort occurs when state courts invoke both general interpretive theories and specific canons of interpretation as explained by the federal courts. So, for example, a state court may discuss King v. Burwell,⁵⁴576 U.S. 473 (2015). which interpreted the Affordable Care Act, in a case about a state agency’s power to quarantine non-diseased whitetail deer,⁵⁵Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 526, 536 (Iowa 2017). or cite Facebook, Inc. v. Duguid,⁵⁶141 S. Ct. 1163 (2021). which considered the lawfulness of certain telemarketing techniques, in a case about a driver’s license revocation.⁵⁷Sylvester v. Admin. Dir. of Cts., 494 P.3d 1219, 1220, 1223 (Haw. 2021). The state courts in those cases borrowed King’s intimation that “statutes do not commit suicide”⁵⁸Brakke, 897 N.W.2d at 536. and Facebook’s explanation of the series-qualifier canon,⁵⁹Sylvester, 494 P.3d at 1223 (citing Facebook, 141 S. Ct. at 1169). respectively. They borrowed those cases’ methodological tools but not their holdings. Sections B and C below study pure methodological borrowing in more detail.

The second way that state courts borrow from federal cases interpreting federal statutes is by interpreting state statutes in the same way that a federal court has interpreted a substantially similar federal statute. Such borrowing of “substantive interpretations” takes place across a variety of subject matters, ranging from employment discrimination⁶⁰See Alex B. Long, “If the Train Should Jump the Track . . .”: Divergent Interpretations of State and Federal Employment Discrimination Statutes, 40 Ga. L. Rev. 469, 475 (2006). to criminal law⁶¹E.g., State v. Sims, 195 So. 3d 441, 446–47 (La. 2016); State v. Bobic, 996 P.2d 610, 618–19 (Wash. 2000). to disputes about attorneys’ fees.⁶²E.g., Gurrobat v. HTH Corp., 346 P.3d 197, 202–03 (Haw. 2015); In re S.D. Microsoft Antitrust Litig., 707 N.W.2d 85, 99–100 (S.D. 2005). Indeed, many states have rules of statutory interpretation that encourage this very type of substantive borrowing.⁶³E.g., Anfinson v. FedEx Ground Package Sys., Inc., 281 P.3d 289, 298 (Wash. 2012) (“At least where there is no contrary legislative intent, when a state statute is ‘taken “substantially verbatim” from [a] federal statute, it carries the same construction as the federal law and the same interpretation as federal case law.’” (quoting Bobic, 996 P.2d at 610)); Woodrow Wilson of Middletown, LLC v. Conn. Hous. Fin. Auth., 986 A.2d 271, 276 (Conn. 2010) (“When a state statute is ambiguous and in need of construction, this court has frequently looked to analogous federal statutes for guidance in the interpretation of our state act.”). State courts, however, in exercising their authority as the final arbiters of state law, on occasion depart from federal court interpretations of substantially similar federal statutes.⁶⁴E.g., Bennett, supra note 15, at 778–82, 784–86. To highlight when and how state courts borrow (and reject) federal substantive interpretations, this Section takes a close look at the state courts that have grappled with the Supreme Court’s interpretation of Title VII in Bostock.

The question in Bostock was one of pure statutory interpretation: whether Title VII, which makes it unlawful for an employer to discriminate “because of . . . sex,” bars employers from discriminating on the basis of sexual orientation or transgender status.⁶⁵Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738, 1741 (2020). The Court held that it does. It assumed that “sex” referred to the biological distinctions between males and females, and it held that “because of” incorporates the traditional but-for causation standard.⁶⁶Id. at 1739. Given those premises, the Court reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”⁶⁷Id. at 1741. So, an employer who discriminates on one of those bases necessarily discriminates “because of sex.” And thus violates Title VII.⁶⁸See id. at 1743, 1754.

In the wake of Bostock, a handful of state high courts have reconsidered state precedent that interpreted analogous nondiscrimination statutes. Some have borrowed Bostock’s substantive holding (or aspects thereof);⁶⁹E.g., Commonwealth v. Carter, 172 N.E.3d 367, 379–80 (Mass. 2021); N.H. v. Anoka-Hennepin Sch. Dist. No. 11, 950 N.W.2d 553, 563 & n.3 (Minn. Ct. App. 2020). at least one other has rejected it.⁷⁰See Vroegh v. Iowa Dep’t of Corr., 972 N.W.2d 686, 702 (Iowa 2022). The Michigan Supreme Court, for example, recently overruled precedent that its state civil rights act, which prohibited discrimination “because of . . . sex,” did not encompass discrimination on the basis of sexual orientation.⁷¹Rouch World, LLC v. Dep’t of C.R., 987 N.W.2d 501, 504 (Mich. 2022). Following the U.S. Supreme Court’s lead, it assumed that “sex” referred to “whether one is a biological male or biological female,” and acknowledged that “because of” incorporates but-for causation.⁷²Id. at 512–13. Then, applying the same textualist methodology used by the Bostock majority, the Michigan Supreme Court was persuaded that the Court “offer[ed] a straightforward analysis of the plain meaning of analogous statutory language” and ultimately agreed that “[d]iscrimination on the basis of sexual orientation necessarily constitutes discrimination because of sex.”⁷³Id. at 513, 519.

The Iowa Supreme Court saw things differently. Similar to the experience in Michigan, the Iowa apex court had long ago construed its civil rights act, which then prohibited discrimination on the basis of “sex,” not to prohibit discrimination on the basis of a person’s transgender status.⁷⁴See Sommers v. Iowa C.R. Comm’n, 337 N.W.2d 470, 473, 477 (Iowa 1983). When asked to take a fresh look at that precedent in the wake of Bostock, the Iowa Supreme Court acknowledged that federal courts’ interpretations of similar statutory language can be persuasive, but also that “we aren’t bound by them.”⁷⁵Vroegh, 972 N.W.2d at 702. The Iowa court understood the employee to “argue[] that ‘gender identity’ is subsumed within the meaning of ‘sex.’”⁷⁶Id. And on this point the court could not have been clearer in its rejection of federal law: “We disagree with the Bostock majority on this issue and thus reject [the employee’s] argument advancing it.”⁷⁷Id. The Iowa Supreme Court’s textualist analysis instead largely tracked the rationales employed in the dissenting opinions in Bostock.⁷⁸Compare id. (“An employer could discriminate against transgender individuals without even knowing the sex of the individuals adversely affected.”), with Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1760 (2020) (Alito, J., dissenting) (“Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex.”). Compare Vroegh, 972 N.W.2d at 702 (discussing the Scalia-Garner “fair interpretation” method), with Bostock, 140 S. Ct. at 1827 (Kavanaugh, J., dissenting) (same).

B.      Borrowing (and Rejecting) Interpretive Theories

When state courts borrow the federal law of interpretation divorced from the substantive interpretation of a particular statute, they borrow either a general interpretive theory or discrete tools of interpretation. This Section outlines how state courts resolve cases using two of the most well-worn general interpretive approaches applied by the federal courts: textualism and purposivism. To show how state courts borrow these general interpretive frameworks, this Section explores how state courts have cited two of the most prominent cases associated with each theory: Bostock and Church of the Holy Trinity v. United States.⁷⁹143 U.S. 457 (1892).

1.      Textualism

In Bostock, at the pen of Justice Neil Gorsuch, the Court recited several general principles of statutory interpretation associated with textualism. Justice Gorsuch observed, for example, that the Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,”⁸⁰Bostock, 140 S. Ct. at 1738. and added that “only the words on the page constitute the law adopted by Congress and approved by the President.”⁸¹Id. The Court proceeded to analyze the “key statutory terms in turn” by separately defining “sex,” “because of,” “discriminate,” and “individuals,” before assessing their combined legal effect.⁸²Id. at 1739–41. The Court eventually reached its conclusion on the basis of what it perceived to be “unambiguous statutory text.”⁸³Id. at 1750–51. “Judges,” Justice Gorsuch reminded us, “are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”⁸⁴Id. at 1754. All these principles sound in textualism.⁸⁵See John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 424 (2005) (“[T]extualists believe that the only meaningful collective legislative intentions are those reflected in the public meaning of the final statutory text.”).

The dissents sound in textualism too—but they sound much different. While both dissents agreed with the majority that a textualist is “to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written,’”⁸⁶Bostock, 140 S. Ct. at 1755 (Alito, J., dissenting) (emphasis omitted) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012)); see also id. at 1828 (Kavanaugh, J., dissenting) (arguing that courts should “heed how ‘most people’ ‘would have understood’ the text of a statute when enacted” (quoting New Prime Inc. v. Oliveira, 139 S. Ct. 532, 538–39 (2019))). Justice Samuel Alito criticized the majority’s approach for failing to consider Title VII’s social and linguistic context,⁸⁷See id. at 1766–67 (Alito, J., dissenting). and Justice Brett Kavanaugh similarly maintained that the majority’s approach of “split[ting] statutory phrases into their component words” was too “literalist.”⁸⁸Id. at 1827–28 (Kavanaugh, J., dissenting). For Justice Alito, the dispositive question should have been “how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex.”⁸⁹Id. at 1767 (Alito, J., dissenting). In a similar vein, Justice Kavanaugh stressed that a basic lesson of “Statutory Interpretation 101” is that “courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”⁹⁰Id. at 1825, 1828 (Kavanaugh, J., dissenting) (emphasis added). All three opinions in Bostock thus purported to sail under a unified textualist flag,⁹¹See id. at 1756 (Alito, J., dissenting). but in reality evinced two competing textualisms.⁹²See Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 267 (2020).

Juxtaposed to the state court cases that relied on Bostock’s substantive holding is a separate, much larger, category of state court cases that rely on Bostock’s abstract textualist principles alone. These cases have nothing to do with antidiscrimination law. Rather, they run the gamut from an eviction proceeding⁹³See 36170 Realty Ltd. v. Boyd, No. 56347/2011, 2021 WL 772468, at *1–2, *14–15 (N.Y. Civ. Ct. Feb. 22, 2021) (discussing Bostock). to a COVID-19 regulation dispute⁹⁴See In re Republican Party of Tex., 605 S.W.3d 47, 48, 50 & n.6 (Tex. 2020) (Devine, J., dissenting) (citing Bostock). to first-degree murder.⁹⁵Williams v. State, 314 So. 3d 775, 780–81 (Fla. Dist. Ct. App. 2021) (discussing Bostock). The common thread is only that all these cases involve statutory interpretation—and all cite Bostock while engaging in textualism. But the way this category of cases engages Bostock is to cite or quote only its interpretive rule statements (or those of Bostock’s separate opinions), apart from any similarity of subject matter.⁹⁶36170 Realty, at *14–15 (citing Bostock, 140 S. Ct. at 1738. When state courts engage Bostock in this way, they hardly ever invoke Bostock merely to disagree with textualism. Even the Iowa Supreme Court, which rejected Bostock’s substantive holding in interpreting an Iowa statute, limited its disagreement to the Court’s application of textualism⁹⁷See Vroegh v. Iowa Dep’t of Corr., 972 N.W.2d 686, 702 (Iowa 2022) (“Vroegh in effect argues that ‘gender identity’ is subsumed within the meaning of ‘sex.’ We disagree with the Bostock majority on this issue and thus reject Vroegh’s argument advancing it.”). and in fact employed textualist reasoning itself.⁹⁸See id. at 702–03 (citing Scalia & Garner, supra note 86, at 174, 233). State courts may cite the Bostock majority or one of the dissents in applying either a “formalist textualism” or a “flexible textualism,”⁹⁹Grove, supra note 92, at 267. but I have not found a state court that has explicitly disavowed any of the Bostock opinions’ approaches to textualism in the abstract.

Bostock is perhaps the archetypal example of state courts borrowing the Supreme Court’s version(s) of textualism, but as a case study it is unique only in its popularity among state court jurists. State courts invoke many textualist Supreme Court opinions when engaging in textualist analysis themselves, and they have done so for some time.¹⁰⁰E.g., State v. McKenzie, 331 So. 3d 666, 671 (Fla. 2021) (quoting King v. Burwell, 576 U.S. 473, 500–01 (2015) (Scalia, J., dissenting)); Spade v. Select Comfort Corp., 181 A.3d 969, 980 & n.7 (N.J. 2018) (first citing Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014); and then citing Perrin v. United States, 444 U.S. 37, 42 (1979)); People ex rel. Hanover Nat. Bank of N.Y.C. v. Goldfogle, 137 N.E. 611, 614 (N.Y. 1922) (“No way of escape from such a conclusion is open except by disregarding the rule which requires us to give a plain meaning to plain words plainly used.” (first citing United States v. Goldenberg, 168 U.S. 95, 102 (1897); and then citing Rodgers v. United States, 185 U.S. 83, 85 (1902))). True, state courts do not always cite Supreme Court opinions when interpreting state statutes through a textualist lens, and in absolute numbers, they may even do so in a small minority of cases requiring statutory interpretation. Yet a survey of the case law reveals that when state courts engage with the Supreme Court’s textualist opinions—both majority and separate opinions—they generally tend to cite them favorably.

2.      Purposivism

What Bostock is to textualism, the Court’s 1892 decision in Church of the Holy Trinity is to purposivism. In that case, the Court interpreted a statute that made it unlawful to help the immigration of foreigners who had contracted “to perform labor or service of any kind in the United States.”¹⁰¹Act of Feb. 26, 1885, ch. 164, 23 Stat. 332 (codified as amended at 29 U.S.C. § 2164 (1901)), superseded by Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213. When a New York church assisted an Englishman to immigrate to America to serve as its rector pursuant to a contract, the United States invoked the statute in an action for civil penalties against the church.¹⁰²Church of the Holy Trinity v. United States, 143 U.S. 457, 458 (1892). The Court held that the statute did not apply to the situation, even though the rector was contracted to perform labor or service, because its reading of the legislative history revealed a congressional intent that the statute should apply only to manual laborers, not “brain toilers” like the rector.¹⁰³Id. at 464. The Court reached this perhaps curious result by invoking the “familiar rule[] that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.”¹⁰⁴Id. at 459. (Though the Court’s recourse to legislative history to discern the law’s “spirit” may have been an innovation.¹⁰⁵See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1835–36 (1998).) The opinion also explained that the “language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.”¹⁰⁶Church of the Holy Trinity, 143 U.S. at 460. Church of the Holy Trinity thus serves as the archetype for both purposivism¹⁰⁷John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 6 (2001) (classifying Church of the Holy Trinity as a “strongly purposive interpretation”). and the absurdity doctrine.¹⁰⁸John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2403 (2003) (classifying Church of the Holy Trinity as one of “two leading absurdity cases”). The unwritten congressional intent in that case trumped the clear facial applicability of the statutory text.

It did not take long for state courts to borrow the interpretive methodology of Church of the Holy Trinity. Before the turn of the twentieth century, a number of state courts had invoked the case in support of a purposivist approach to statutory interpretation¹⁰⁹See Mercer v. Mercer, 57 P. 750, 752 (Colo. App. 1899); Austin v. State, 53 N.E. 481, 483 (Ind. App. 1899); Russell v. Ayer, 27 S.E. 133, 141 (N.C. 1897), overruled by Kitchin v. Wood, 70 S.E. 995 (N.C. 1911); Billingsley v. Marshall Cnty. Comm’rs, 49 P. 329 (Kan. Ct. App. 1897); Hutchings v. Com. Bank of Danville, 20 S.E. 950, 952 (Va. 1895); State v. Phenix Fire Ins. Co., 21 S.W. 893, 894 (Tenn. 1893); Pierce v. City Clerk of Spokane, 34 P. 428, 429 (Wash. 1893); In re Op. of Justs., 33 A. 1076, 1093 (N.H. 1891). and in applying the Supreme Court–approved absurdity doctrine.¹¹⁰See Thompson v. Esty, 45 A. 566, 573 (N.H. 1897); Davis v. Bonney, 17 S.E. 229, 230 (Va. 1893); People v. Ballard, 32 N.E. 54, 62 (N.Y. 1892). Individual state court jurists continue to borrow the interpretive approach of Church of the Holy Trinity today,¹¹¹E.g., Bates v. Neva, 2014 MT 336, ¶ 35, 339 P.3d 1265, 1274 (Rice, J., dissenting); Miami Cnty. Bd. of Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 255 P.3d 1186, 1213–14 (Kan. 2011) (Leben, J., concurring); Cameron v. Auto Club Ins. Ass’n, 718 N.W.2d 784, 814 (Mich. 2006), overruled by Regents of Univ. of Mich. v. Titan Ins. Co., 791 N.W.2d 897 (Mich. 2010). though it has been favorably cited in state supreme court majority opinions only three times in the past fifteen years¹¹²See State v. Hudson, 2018-Ohio-423, ¶ 30, 106 N.E.3d 205, 214; Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 535–38 (Iowa 2017); Sherwood Forest Country Club v. Litchfield, 2008-0194 (La. 12/19/08), 998 So. 2d 56, 62, rev’d on reh’g, 2008-0194 (La. 2/13/09), 6 So. 3d 141.—a significant decrease from its initial lauded reception. Indeed, modern state court references to Church of the Holy Trinity are just as likely to reject both its purposivism and liberal approach to the absurdity doctrine as they are to borrow them. In one of the cases that ushered in a more textualist approach to statutory interpretation in Michigan, for example, the state supreme court pulled no punches by labeling a section of its opinion, “Sins of an UnHoly Trinity: The So-Called ‘Absurd Result’ Rule of Construction.”¹¹³People v. McIntire, 599 N.W.2d 102, 107 (Mich. 1999); see Gluck, supra note 9, at 1805–07. Individual state supreme court justices in other states likewise have written separately to express their disdain for the kind of purposivism that Church of the Holy Trinity licenses.¹¹⁴E.g., Rodriguez v. Lasting Hope Recovery Ctr. of Cath. Health Initiatives, 955 N.W.2d 707, 726–29 (Neb. 2021) (Papik, J., concurring); State v. Rasabout, 2015 UT 72, ¶ 124, 356 P.3d 1258, 1287–88 & n.50 (Lee, J., concurring in part); Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 435 & n.4 (Tex. 2011) (Jefferson, C.J., concurring).

Those courts and jurists who explicitly reject the interpretive methodology of Church of the Holy Trinity do not, however, write on a blank slate. Favorable citations of Church of the Holy Trinity have, in recent years, fallen into desuetude in the federal courts, and especially in the Supreme Court.¹¹⁵John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 113, 119 (2011). The textualist crusade against purposivism, a liberal conception of the absurdity doctrine, and the use of legislative history in statutory interpretation was led, of course, by Justice Antonin Scalia—and Church of the Holy Trinity was his go-to example of the dangers and judicial-empowering nature of any atextual approach to statutory interpretation.¹¹⁶See Antonin Scalia & Amy Gutmann, A Matter of Interpretation: Federal Courts and the Law 18–23 (Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon & Ronald Dworkin eds., 1997). His critique soon found support in the academic literature¹¹⁷E.g., Vermeule, supra note 105, at 1837–38; see also Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62, 90 (2015) (“Church of the Holy Trinity v. United States—oft-maligned for its statement that statutory ‘spirit’ may trump the plain ‘letter of the statute’—is long since dead.” (citing Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892))). and in Supreme Court opinions (albeit never in an opinion for the Court).¹¹⁸See Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 108–22 (2007) (Scalia, J., dissenting); Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 470–75 (1989) (Kennedy, J., concurring in the judgment). The state court jurists who reject Church of the Holy Trinity have drawn upon these sustained lines of criticism in formulating their own critiques.¹¹⁹See Rodriguez, 955 N.W.2d at 727 (Papik, J., concurring) (citing scholarship critical of Holy Trinity by Antonin Scalia, Bryan Garner, Amy Barrett, and John Manning); Rasabout, 356 P.3d at 1288 n.50 (Lee, J., concurring in part and concurring in the judgment) (citing one of Manning’s critiques of Holy Trinity); Ojo, 356 S.W.3d at 435 n.4 (Jefferson, C.J., concurring) (citing scholarship critical of Holy Trinity by Antonin Scalia and Adrian Vermeule).

Unlike the experience with Bostock, state courts have been willing to reject, by name, the purposivist methodology of Church of the Holy Trinity. The state courts’ dwindling favorable treatments of Church of the Holy Trinity and relatively recent outright rejections of the case map neatly onto the ascendance of textualism at the Supreme Court.¹²⁰See Manning, supra note 115, at 113–14. So, while it remains the case that state courts borrow both textualist and purposivist principles from the Supreme Court, the overall trend, consistent with others’ observations, is that state courts are following the Supreme Court’s lead in accepting textualism as the dominant interpretive methodology (even if the methodology is “modified” as applied by state courts).¹²¹See Gluck, supra note 9, at 1754. At the level of abstract interpretive methodology, state courts seem to be heavily influenced by the Supreme Court’s own methodological choices in interpreting their own state’s statutes.

C.      Borrowing (and Rejecting) Canons of Interpretation

No matter the broader interpretive theory to which a court adheres, all state courts apply canons of interpretation. And they often borrow from the Supreme Court in doing so. The statutory interpretation literature distinguishes between two types of canons: linguistic and substantive.¹²²This Article uses the terms canons of “interpretation” and canons of “construction” interchangeably. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 117 (2010) (“Canons of interpretation are rules of construction that courts apply in the interpretation of statutes.”). Linguistic canons are “rules of thumb about how English speakers use language”¹²³Id. at 121 n.52. and are meant to “give effect to ‘ordinary’ or ‘common’ meaning of the language enacted by the legislature.”¹²⁴James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 12 (2005). Although minor differences may exist, the suite of linguistic canons is very similar across jurisdictions; thus, for linguistic canons one can expect to see borrowing of federal explanations or sources, not so much borrowing of canons themselves. Substantive canons, on the other hand, are “policy-based background norms” against which judges interpret statutes,¹²⁵Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 826 (2017). and they “promote policies external to a statute.”¹²⁶Barrett, supra note 122, at 117. Substantive canons vary across jurisdictions, so one can speak of borrowing or rejecting canons themselves. Through case studies of particular canons, this Section shows how state courts borrow in each context.

1.      Linguistic Canons

The so-called “series-qualifier” canon is a linguistic canon of interpretation. It teaches that “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.”¹²⁷Scalia & Garner, supra note 86, at 147. As of this Article’s writing, the canon has been referenced eighty-two times in state-court opinions.¹²⁸On June 26, 2023, I conducted a Westlaw search for the phrase “series-qualifier” that returned eighty-two state court cases. The first time the term “series-qualifier” appeared in a state-court opinion was in 2013, shortly after Justice Scalia and Bryan Garner published their famed treatise that labeled the series-qualifier canon as such.¹²⁹See Pawn 1st, LLC v. City of Phoenix, 294 P.3d 147, 150 (Ariz. Ct. App. 2013); Scalia & Garner, supra note 86, at 147. From 2012 (the year the treatise was published) to February 29, 2016, only six state court opinions applied the series-qualifier canon by name. Each of those opinions quote the Reading Law entry on the canon.¹³⁰See People v. Claudio, No. G050466, 2015 WL 7874208, at *3 (Cal. Ct. App. Dec. 4, 2015); Bates v. Neva, 2014 MT 336, ¶ 16, 339 P.3d 1265, 1269; Roberson v. Phillips Cnty. Election Comm’n, 2014 Ark. 480, at 11–12, 449 S.W.3d 694, 700 (Baker, J., dissenting); People v. Lovato, 2014 COA 113, ¶ 24, 357 P.3d 212, 221; In re Est. of Pawlik, 845 N.W.2d 249, 252 (Minn. Ct. App. 2014); Pawn 1st, 294 P.3d at 150. Interestingly, however, four of those six opinions also quote a 1920 Supreme Court case called Porto Rico Railway, Light & Power Co. v. Mor,¹³¹253 U.S. 345 (1920). See Claudio, 2015 WL 7874208, at *3; Roberson, 449 S.W.3d at 700 (Baker, J., dissenting); Lovato, 357 P.3d at 221; Pawlik, 845 N.W.2d at 252. a case applying the canon that Scalia and Garner do not cite themselves.¹³²See Scalia & Garner, supra note 86, at 147–51. Mor explained that “[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”¹³³Mor, 253 U.S. at 348.

Of the admittedly few state courts that applied the series-qualifier canon prior to 2016, most of them borrowed the Supreme Court’s explanation of it. But why the popularity of the canon in the states in the past eight years? On March 1, 2016, the Supreme Court decided Lockhart v. United States,¹³⁴577 U.S. 347 (2016). in which it first addressed the series-qualifier canon by name.¹³⁵Id. at 355. A criminal statute imposed a ten-year mandatory minimum sentence for a defendant who had “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”¹³⁶Id. at 349 (quoting 18 U.S.C. § 2252(b)(2)). The Court had to decide whether the phrase “involving a minor or ward” modified all the items in the list or only “abusive sexual conduct.”¹³⁷Id. The Court applied a different linguistic canon—the rule of the last antecedent—in concluding that the phrase modified only “abusive sexual conduct.”¹³⁸See id. at 351–52. But it devoted a section of the opinion to explaining why the “contextual indicia” of the statute made the defendant’s reliance on the series-qualifier canon misplaced.¹³⁹Id. at 356. The dissent disagreed, instead arguing that the statutory context did not negate the import of the series-qualifier canon given that it “reflects the completely ordinary way that people speak and listen, write and read.”¹⁴⁰Mor, 577 U.S. at 364 (Kagan, J., dissenting). The dissent would have held that each item in the series was qualified by “involving a minor or ward.”¹⁴¹Id. at 362. The back-and-forth between Justice Sonia Sotomayor’s opinion for the Court and Justice Elena Kagan’s dissent provided the Supreme Court’s first in-depth treatment of the series-qualifier canon.

State courts noticed. For state courts, what mattered was not so much whether Justice Sotomayor or Justice Kagan had the better argument—what mattered was that all the Justices of the Supreme Court recognized that the series-qualifier canon is a legitimate tool of construction. Since Lockhart, twenty-five states and the Supreme Court of the Virgin Islands have applied the series-qualifier canon in seventy-six cases and counting.¹⁴²On June 26, 2023, I conducted a Westlaw search in all states for the phrase “series-qualifier” that returned eighty-two case citations. I then filtered the results by date to show only those cases decided after February 29, 2016, and filtered the results by jurisdiction. Of the jurisdictions that have recognized the series-qualifier canon, fully fifteen of them have relied on U.S. Supreme Court precedent in employing the canon to interpret state law.¹⁴³In re Tharaldson Irrevocable Tr. II dated Oct. 3, 2011, 2023 ND 2, ¶ 10, 984 N.W.2d 375, 379 (quoting Facebook, Inc. v. Duguid, 592 U.S. 395, 402–03 (2021)); Mosby v. Ingalls Mem’l Hosp., No. 129081, 2023 WL 8266305, at *9 (Ill. Nov. 30, 2023) (citing Facebook, 592 U.S. at 402–03); Bearing Distr., Inc. v. Gerregano, No. M2020-01075-COA-R3-CV, 2022 WL 40008, at *6–7 (Tenn. Ct. App. Jan. 5, 2022) (quoting Paroline v. United States, 572 U.S. 434, 447 (2014)); Miller v. People, 76 V.I. 413, 441 (2022) (citing Facebook, 592 U.S. at 402–03); State v. Khalil, 956 N.W.2d 627, 635 (Minn. 2021) (quoting Lockhart v. United States, 577 U.S. 347, 351 (2016)); Sylvester v. Admin. Dir. of Cts., 494 P.3d 1219, 1223 (Haw. 2021) (quoting Facebook, 592 U.S. at 402–03); Gabbard v. Madison Loc. Sch. Dist. Bd. of Educ., 2021-Ohio-2067, 179 N.E.3d 1169, 1198 (DeWine, J., dissenting) (quoting Facebook, 592 U.S. at 402–03); Blankenship v. Kennedy, 320 So. 3d 565, 569 (Ala. 2020) (quoting Lockhart, 577 U.S. at 353); State v. Whindleton, No. 19-0333, 2020 WL 2735448, at *5–6 (W. Va. May 26, 2020) (quoting Paroline, 572 U.S. at 447) (declining to apply canon); Sanford v. State, 954 N.W.2d 82, 87 n.18 (Mich. 2020) (quoting Mor, 253 U.S. at 348); Downs v. Thompson, 2019 UT 63, ¶ 19, 452 P.3d 1101, 1105 (quoting Lockhart, 577 U.S. at 353); PeaceHealth St. Joseph Med. Ctr. v. Dep’t of Rev., 449 P.3d 676, 680 (Wash. Ct. App. 2019), aff’d, 468 P.3d 1056 (2020) (citing Lockhart, 577 U.S. at 353); A-Z Venue Mgmt., LLC v. Zoning Bd. of Adjustment of Twp. of W. Amwell, No. A-1388-17T1, 2019 WL 3072089, at *5 (N.J. Super. Ct. App. Div. July 15, 2019) (quoting Lockhart, 577 U.S. at 364 (Kagan, J., dissenting)); People v. Lovato, 2014 COA 113, ¶ 24, 357 P.3d 212, 221 (quoting Mor, 253 U.S. at 348); Scott v. State, 788 S.E.2d 468, 473 (Ga. 2016) (quoting Lockhart, 577 U.S. at 355). The remaining jurisdictions cited only Reading Law or state-law precedent in recognizing the canon.¹⁴⁴See State v. Paye, 978 N.W.2d 257, 259 (Iowa Ct. App. 2022), vacated, No. 19-1760, 2022 WL 16841997 (Iowa Nov. 10, 2022) (citing Reading Law); State v. Shaw, 248 A.3d 366, 380 (N.H. 2020) (citing Reading Law); In re D.D., 2020 MT 126, ¶ 19, 400 Mont. 105, 464 P.3d 60, 66 (Baker, J., dissenting) (citing state precedent); Azam v. Carroll Indep. Fuel, LLC, 199 A.3d 701, 714 (Md. Ct. Spec. App. 2019) (citing Reading Law); ZB, N.A. v. Superior Ct., 448 P.3d 239, 248 n.7 (Cal. 2019) (citing state precedent); Alexander v. Linkmeyer Dev. II, LLC, 119 N.E.3d 603, 616 n.8 (Ind. Ct. App. 2019) (citing Reading Law); Perryman v. Spartan Tex. Six Cap. Partners, Ltd., 546 S.W.3d 110, 121 n.7 (Tex. 2018) (citing Reading Law); State v. Champagne, 561 S.W.3d 869, 873 (Mo. Ct. App. 2018) (citing Reading Law); Argus Leader Media v. Hogstad, 2017 S.D. 57, ¶¶ 7–8, 902 N.W.2d 778, 781 (citing Reading Law); Pawn 1st, LLC v. City of Phoenix, 294 P.3d 147, 150 (Ariz. Ct. App. 2013) (citing Reading Law); Beach Towing Servs., Inc. v. Sunset Land Assocs., LLC, 278 So. 3d 857, 862 (Fla. Dist. Ct. App. 2019) (citing Reading Law). It is a fair assumption, therefore, that the Supreme Court’s discussion of the series-qualifier canon in Lockhart was the catalyst for the states’ interest in borrowing (or, for those that already recognized it, borrowing the Supreme Court’s explanation of) the canon themselves.

Yet, the state courts borrow the Supreme Court’s explanation of well-worn linguistic canons in addition to newly minted ones. Consider one of the most oft-invoked linguistic canons, expressio unius est exclusio alterius: “to express or include one thing implies the exclusion of the other, or of the alternative.”¹⁴⁵Expressio Unius Est Exclusio Alterius, Black’s Law Dictionary 726 (11th ed. 2019). Some authorities recite this canon as inclusio unius est exclusio alterius, which means the same thing: that the inclusion of one thing implies the exclusion of the other. See, e.g., Inclusio Unius Est Exclusio Alterius, Black’s Law Dictionary (11th ed. 2019) (directing readers to the entry for Expressio Unius Est Exclusio Alterius). For simplicity’s sake, this Article focuses only on cases that use the “expressio unius” formulation, which appears to be overwhelming preferred by courts. See, e.g., State v. Evans, 2021 UT 63, 500 P.3d 811, 822 n.11 (finding expressio unius is more commonly cited than inclusio unius). In addition to the fact that the canon purports to describe how English speakers typically communicate, the canon also has a long historical pedigree in the law. It is recognized in the famous treatises of Edward Coke¹⁴⁶2 The Reports of Sir Edward Coke 59a (John Henry Thomas & John Farquhar Fraser eds., Joseph Butterworth & Son 1826). and Joseph Story,¹⁴⁷See 1 Joseph Story, Commentaries on the Constitution of the United States § 628 (Thomas M. Cooley ed., 1873). and modern treatises on statutory interpretation continue to explain it.¹⁴⁸See, e.g., William N. Eskridge, Jr., Philip P. Frickey, Elizabeth Garrett & James J. Brudney, Cases and Materials on Legislation And Regulation: Statutes And The Creation of Public Policy 1195 (5th ed. 2014); Scalia & Garner, supra note 86, at 107.

Today, the Supreme Court regularly invokes expressio unius when interpreting statutory lists.¹⁴⁹E.g., Bittner v. United States, 143 S. Ct. 713, 720 (2023); Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018). Expressio unius is also frequently referenced in state courts. And though every state has its own precedent applying the canon, state courts interpreting state statutes nonetheless sometimes choose to cite U.S. Supreme Court cases applying expressio unius.

The relative frequency with which state courts have cited Supreme Court applications of the expressio unius canon over time also tells an interesting story. State courts relied on expressio unius as early as the late eighteenth century in interpreting statutes.¹⁵⁰E.g., Respublica v. Cobbett, 3 U.S. (3 Dall.) 467, 471 (Pa. 1798); Commonwealth v. Ronald, 8 Va. (4 Call) 97, 99 (1786). The first instances in which state courts relied on Supreme Court precedent in applying the canon occurred in the 1890s.¹⁵¹See Kennan v. Rundle, 51 N.W. 426, 430 (Wis. 1892) (citing Thomas v. Ry. Co., 101 U.S. 71, 82 (1879)); State ex rel. St. Louis v. Seibert, 27 S.W. 624, 625 (Mo. 1894) (citing Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U.S. 1, 25 (1889)); Pettit v. Duke, 37 P. 568, 569 (Utah 1894) (citing United States v. Arredondo, 31 U.S. 691, 725 (1832)). Borrowing then looks a lot like borrowing today. To take just one example, in an 1894 case, the Supreme Court of the Territory of Utah quoted a U.S. Supreme Court opinion from 1832 that touted expressio unius as “a universal maxim in the construction of statutes.”¹⁵²Pettit, 37 P. at 569 (quoting Arrendondo, 31 U.S. at 725). Then in applying the Supreme Court’s explanation of the canon, the Utah court held that “[w]hen the legislature conferred upon Salt Lake City the power to levy taxes by local assessment for the purposes mentioned in the statute, it excluded, by implication, all other local assessments, except for like purposes.”¹⁵³Id.

In the twentieth century, state courts continued to borrow Supreme Court explanations of the canon in similar ways.¹⁵⁴Martinez v. Martinez, 660 A.2d 13, 18 (N.J. Super. Ct. Ch. Div. 1995); State v. Michael, 729 P.2d 405, 408 (Idaho 1986); Litton Indus. Prod., Inc. v. Gammage, 644 S.W.2d 170, 176 (Tex. Ct. App. 1982), aff’d in part, rev’d in part, 668 S.W.2d 319 (Tex. 1984); Shapiro v. Essex Cnty. Bd. of Chosen Freeholders, 424 A.2d 1203, 1207 (N.J. Super. Ct. Law Div. 1980), aff’d, 453 A.2d 158 (N.J. 1982); Campbell v. First Baptist Church, 259 S.E.2d 558, 563 (N.C. 1979); Smalley Transp. Co. v. Moed’s Transfer Co., 373 So. 2d 55, 56 (Fla. Dist. Ct. App. 1979); Worthington v. Unemployment Ins. Bd., 134 Cal. Rptr. 507, 509 (Cal. Dist. Ct. App. 1976) (refusing to apply canon); Waters v. State, 152 A.2d 811, 822 (Md. 1959) (Prescott, J., dissenting); Lewis v. Morgan, 252 S.W.2d 691, 693 (Ky. 1952); Wilson v. Rowan Drilling Co., 227 P.2d 365, 383 (N.M. 1950); Fed. Land Bank v. Mulkey, 153 So. 775, 779 (Ala. 1934); In re Downer’s Est., 142 A. 78, 82 (Vt. 1928); Town of Hooker v. Morris, 218 P. 869, 871 (Okla. 1923); City of Shreveport v. Price, 77 So. 883, 885 (La. 1918); City of Titusville v. Gahan, 34 Pa. Super. 613, 621 (Pa. Super. Ct. 1907). But state courts continued to do so with relative infrequency, instead often opting to apply the canon based on its status as a “rule” or “time-honored maxim” without citing any case law in support.¹⁵⁵E.g., Helberg v. Nat’l Union Fire Ins. Co., 657 N.E.2d 832, 835 (Ohio Ct. App. 1995); Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 759 (Pa. 1994); Mo. Pac. R.R. v. Little, 319 S.W.2d 785, 787 (Tex. Civ. App. 1958); Keeline v. Sealy, 164 S.W. 556, 557 (Mo. 1914).

Fast forward to the first quarter of the twenty-first century, however, and things look much different. State court borrowing of the Supreme Court’s explanations of linguistic canons has picked up considerably.¹⁵⁶See In re Establishing the Solar Gen. Fund Rider, 169 Ohio St. 3d 740, 748, 2022-Ohio-4348 ¶ 34 & n.2, 207 N.E.3d 762, 770–71; State v. Beaver, 887 S.E.2d 610, 625 (W. Va. 2022); Stratford Police Dep’t v. Bd. of Firearms Permit Exam’rs, 272 A.3d 639, 647–48 n.6 (Conn. 2022); Food Value Pharmacy Corp. v. Dep’t of Health & Hum. Servs., No. 354020, 2022 WL 815134, at *3 (Mich. Ct. App. Mar. 17, 2022); Roberge v. ASRC Constr. Holding Co., 503 P.3d 102, 109 n.60 (Alaska 2022); State v. Evans, 2021 UT 63, ¶ 62, 500 P.3d 811, 824; State v. Patel, 486 P.3d 188, 194 (Ariz. 2021) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 719 (1991) (Scalia, J., dissenting)); People v. Aviles, 148 N.Y.S.3d 659, 661–62 (N.Y. Crim. Ct. 2021); World Fresh Mkts., LLC v. Palermo, 74 V.I. 455, 464, (2021); In re Est. of Von Greiff, 956 N.W.2d 524, 531 (Mich. Ct. App. 2020), aff’d, 984 N.W.2d 34 (2022); Facebook, Inc. v. Wint, 199 A.3d 625, 632 (D.C. 2019); Cooper v. Berger, 822 S.E.2d 286, 296 (N.C. 2018); Munoz v. Norfolk S. Ry. Co., 2018 Ill App (1st) 171009, ¶ 33, 121 N.E.3d 899, 906, appeal denied, judgment vacated, 124 N.E.3d 495 (Ill. 2019); ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 877 (Tex. 2018); People v. Gomia, 2017 Guam 13, ¶ 11; State v. Smith, 899 N.W.2d 120, 123 (Minn. 2017); Howard Jarvis Taxpayers Ass’n v. Padilla, 363 P.3d 628, 644–45 (Cal. 2016); Serve You Custom Prescription Mgmt. v. Ala. State Bd. of Pharmacy, 175 So. 3d 635, 639 (Ala. Civ. App. 2015); Adams v. CDM Media USA, Inc., 346 P.3d 70, 88 (Haw. 2015), as corrected (Mar. 11, 2015); Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 725 n.3 (Minn. 2014) (Lillehaug, J., dissenting); Fraternal Ord. of Police, Lodge No. 64 v. Pers. Bd. of Jefferson Cnty., 103 So. 3d 17, 27 (Ala. 2012); New Albany Park Condo. Ass’n v. Lifestyle Cmtys., Ltd., 2011-Ohio-2806, 960 N.E.2d 992, at ¶ 23; Aventis Holdings, LLC v. Kearny Mun. Utils. Auth., 2011 WL 744637, at *5 (N.J. Super. Ct. App. Div. Mar. 4, 2011); Vogen Funding, LP v. Wener, 81 Va. Cir. 100, 101 (2010); Fox v. Grayson, 317 S.W.3d 1, 9–10 (Ky. 2010); Odeniran v. Hanley Wood, LLC, 985 A.2d 421, 427 (D.C. 2009); Ford v. State, 305 S.W.3d 530, 537–38 n.27 (Tex. Crim. App. 2009); Evans v. Atl. City Bd. of Educ., 960 A.2d 768, 771 (N.J. Super. App. Div. 2008); Amos v. Metro. Gov’t of Nashville & Davidson Cnty., 259 S.W.3d 705, 715 (Tenn. 2008); Overstreet v. TRW Com. Steering Div., 256 S.W.3d 626, 633 (Tenn. 2008); Howard Univ. Hosp./Prop. & Cas. Guar. Fund v. D.C. Dep’t of Emp. Servs., 952 A.2d 168, 175 (D.C. 2008); Wood v. Booth, 990 So. 2d 314, 331 (Ala. 2008) (Smith, J., concurring); Leatherbury v. Greenspun, 939 A.2d 1284, 1291 (Del. 2007); Taylor v. Currie, 743 N.W.2d 571, 577–78 (Mich. Ct. App. 2007); State v. Quetglas, 901 So. 2d 360, 363 (Fla. Dist. Ct. App. 2005); Brodsky v. Grinnell Haulers, Inc., 853 A.2d 940, 946 (N.J. 2004); Nelski v. Ameritech, No. 244644, 2004 WL 1460001, at *4 (Mich. Ct. App. June 29, 2004); Schertzer v. Carnival Corp., No. 03-30122 CA 21, 2004 WL 2996784, at *2 (Fla. Cir. Ct. June 3, 2004); Davison v. Norfolk S. Ry. Co., No. CL02-36, 2003 WL 21536815, at *2 (Va. Cir. Ct. June 6, 2003) (quoting Smart v. Gillette Co., 70 F.3d 173, 179 (1st Cir.1995)); Pitco Prod. Co. v. Chaparral Energy, Inc., 2003 OK 5, ¶ 20 n.32, 63 P.3d 541, 548 n.32 (interpreting a contract); AT&T Commc’ns of the Pac. Nw., Inc. v. City of Eugene, 35 P.3d 1029, 1046 (Or. Ct. App. 2001); Sch. St. Assocs. Ltd. v. District of Columbia, 764 A.2d 798, 807–08 (D.C. 2001). In fact, state courts from 2000 to 2022 cited Supreme Court precedent explaining the expressio unius canon more than they cited Supreme Court precedent on point from 1789 to 1999.¹⁵⁷To locate the cases cited in footnotes 158 and 160, I ran the following Westlaw search: “expressio unius” /30 “U.S.” and filtered the results by year. The search produced cases in which state courts used the phrase “expressio unius” within thirty words of either “us” or “U.S.,” the latter of which revealed whether the state court cited the U.S. Reports in explaining the canon. I then filtered the cases to ensure that the state courts actually relied on U.S. Supreme Court case law in applying (or refusing to apply) the expressio unius canon themselves. And though the state courts appear to be borrowing Supreme Court precedent with much greater frequency, one thing has remained consistent over time: I have not found one case that explicitly rejected the Supreme Court’s explanation of the expressio unius canon. To be sure, if the linguistic canons really do describe how ordinary English speakers use language, then of course we would not expect a state court to reject a federal court’s articulation of a linguistic canon. But that just tees up the question this Article takes up below: If the linguistic canons apply on their own force, why borrow the Supreme Court’s explanations of them at all?

2.      Substantive Canons

State courts also borrow the U.S. Supreme Court’s substantive canons. A few examples illustrate how they do so.

Start with the major questions doctrine. The Supreme Court firmly established the doctrine as a tool of statutory interpretation in West Virginia v. EPA,¹⁵⁸142 S. Ct. 2587 (2022). and it further applied the doctrine even more recently in Biden v. Nebraska.¹⁵⁹143 S. Ct. 2355 (2023). The doctrine counsels that Congress must speak clearly when it delegates authority to an administrative agency that has vast economic and political significance.¹⁶⁰West Virginia, 142 S. Ct. at 2607–08. The doctrine, at least as a majority has explained it thus far, rests at least in part on federal separation-of-powers principles.¹⁶¹Id. at 2609 (“[I]n certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there.” (quoting Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 324 (2014))). But, as Professor Evan Zoldan has recently shown, that has not stopped the states from applying the federally articulated major questions doctrine as their own.¹⁶²Evan C. Zoldan, The Major Questions Doctrine in the States, 101 Wash. U. L. Rev. 359, 372 n.70 (2023) (collecting authorities). Less than a week after West Virginia was decided, the Arizona Supreme Court cited the case in applying its own version of the major questions doctrine, and more states have joined it since then.¹⁶³Id. (citing Roberts v. State, 512 P.3d 1007, 1017 (Ariz. 2022)).

Consider next the canon of constitutional avoidance. Whether framed as requiring judges to avoid constitutional questions or to render interpretations that avoid actual unconstitutionality,¹⁶⁴See generally Caleb Nelson, Avoiding Constitutional Questions Versus Avoiding Unconstitutionality, 128 Harv. L. Rev. F. 331 (2015); Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945, 1949 (1997) (distinguishing between “classical avoidance” and “modern avoidance” along these lines). the constitutional avoidance canon in either form, like the major questions doctrine, is based in part on the federal separation of powers.¹⁶⁵See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831, 841–42 (2001). While the canon is not without its critics,¹⁶⁶E.g., Kelley, supra note 165, at 867–98; John Copeland Nagle, Delaware & Hudson Revisited, 72 Notre Dame L. Rev. 1495, 1495–97 (1997); Frederick Schauer, Ashwander Revisited, 1995 Sup. Ct. Rev. 71, 74 (1995). the Supreme Court has applied it since at least the early nineteenth century¹⁶⁷See Barrett, supra note 122, at 139 (explaining that the canon to avoid unconstitutional interpretations likely emerged in 1814 and the canon to avoid unconstitutional questions likely emerged in 1909). and continues to apply it with some frequency today.¹⁶⁸See, e.g., Andrew Nolan, Cong. Rsch. Serv., R43706, The Doctrine Of Constitutional Avoidance: A Legal Overview 11, 15–16 (2014) (observing that the Roberts Court “frequently either avoided answering the question posed to it or resolved the constitutional question on narrow grounds”); Neal Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change, 128 Harv. L. Rev. 2109, 2110 (2015) (“In the last few years, the Supreme Court has resolved some of the most divisive and consequential cases before it with the same maneuver: construing statutes to avoid constitutional difficulty.”). But cf. Anita S. Krishnakumar, Passive Avoidance, 71 Stan. L. Rev. 513 (2019) (arguing that the Roberts Court often interprets statutes to avoid constitutional questions even when it does not mention the avoidance canon).

State courts do, too. In Kansas, for example, the state supreme court gave a lengthy explanation of the history of the constitutional avoidance canon (which it, perhaps implausibly, traced back to Marbury v. Madison¹⁶⁹5 U.S. (1 Cranch) 137 (1803).), discussed Justice Louis Brandeis’s seminal concurrence in Ashwander v. TVA,¹⁷⁰297 U.S. 288 (1936). noted how courts in Kansas had applied the canon, and justified its use of the canon by quoting, at length, a U.S. Supreme Court opinion that grounded the canon in the federal separation of powers.¹⁷¹Butler v. Shawnee Mission Sch. Dist. Bd. of Educ., 502 P.3d 89, 101–03 (Kan. 2022). The most popular way that state courts seem to borrow the constitutional avoidance canon is to cite both federal and state-specific precedent on point, both of which often formulate the canon in complementary ways.¹⁷²E.g., O’Shea v. Scherban, 262 A.3d 776, 784 (Conn. 2021); People ex rel. T.B., 2019 CO 53, ¶ 34, 445 P.3d 1049, 1056–57; State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171, 185; State v. Irby, 848 N.W.2d 515, 521–22 (Minn. 2014); see also Alexander ex rel. Est. of Kim v. Coxe, 295 P.3d 380, 388 (Alaska 2013) (relying on only federal precedent in applying canon). Not all states adhere to the canon in both its forms; Illinois courts, for example, apparently will consider the constitutionality of a statute sua sponte. See People ex rel. Chi. Bar Ass’n v. State Bd. of Elections, 558 N.E.2d 89, 93 (Ill. 1990).

Notably, state courts employing both the major questions doctrine and the constitutional avoidance canon rely on U.S. Supreme Court case law applying them, even though, as the Supreme Court itself has noted, the “Constitution does not impose on the States any particular plan for the distribution of governmental powers.”¹⁷³Mayor of Phila. v. Educ. Equal. League, 415 U.S. 605, 615 n.13 (1974). That is, though the separation of powers at the state level can be both stricter¹⁷⁴As evidenced by the state constitutions that contain a separation-of-powers clause. E.g., Neb. Const. art. II, § 1. and looser¹⁷⁵As evidenced by, for example, the fact that “many state courts are involved in rulemaking, political questions, and the administration of criminal cases.” Pohlman, supra note 39, at 1743. than the federal division of powers in certain respects, state courts nonetheless turn to federal case law in applying state-level versions of substantive canons of interpretation developed in the federal courts.

For an example that (arguably) does not rest on constitutional principles, consider the rule of lenity, which, in its modern form, counsels courts to interpret an ambiguous criminal statute in favor of a criminal defendant rather than the government.¹⁷⁶See Moskal v. United States, 498 U.S. 103, 107–08 (1990). The rule, originally touted as “the rule of strict construction,” was applied by English courts before there was a Union.¹⁷⁷Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L. Rev. 918, 925 (2020); see also Wooden v. United States, 142 S. Ct. 1063, 1082 (2022) (Gorsuch, J., concurring in the judgment) (“The rule first appeared in English courts, justified in part on the assumption that when Parliament intended to inflict severe punishments it would do so clearly.” (first citing 1 W. Blackstone, Commentaries on the Laws of England 88 (1765); and then citing 2 M. Hale, The History of the Pleas of the Crown 335 (1736)). And early state court decisions followed this practice, strictly construing penal statutes against the government, even before the federal courts applied it.¹⁷⁸E.g., Elliot v. Richards, 1 Del. Cas. 87, 88 (Ct. Com. Pl. 1796) (“The rule that a penal statute ought to be construed strictly, and the letter must be attended to, and that it cannot extend to crimes not mentioned in it, is a good rule and cited in many books.”); Smith v. Minor, 1 N.J.L. 16, 22 (1790) (“It is a penal act, and by the rules of construction cannot not be extended to cases which do not come within its express words.”). As recent scholarship has pointed out, however, the Supreme Court’s understanding of lenity shifted in the mid-twentieth century.¹⁷⁹Hopwood, supra note 177, at 928–29 (pointing specifically to Callanan v. United States, 364 U.S. 587 (1961), as the first case to usher in a new understanding of the canon). No longer was it a viewed as a rule of strict construction to be applied “at the beginning as an overriding consideration of being lenient to wrongdoers.”¹⁸⁰Callanan, 364 U.S. at 596. Instead, it has come to have force only when there is a “reasonable doubt”¹⁸¹See, e.g., Abramski v. United States, 573 U.S. 169, 204 (2014) (Scalia, J., dissenting) (quoting Moskal, 498 U.S. 103, 108 (1990)). about the meaning of a statute, or when, after applying the traditional tools of statutory interpretation, a “grievous ambiguity”¹⁸²See, e.g., Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)); Abramski, 573 U.S. at 188 n.10 (quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)). remains.¹⁸³To be sure, in a few recent separate opinions, Justice Gorsuch has argued that lenity is better understood as a rule of strict construction rather than as a tiebreaker or tool of last resort. See Bittner v. United States, 143 S. Ct. 713, 724–25 (2023) (Gorsuch, J.) (plurality opinion); Wooden v. United States, 595 U.S. 360, 392–94 (2022) (Gorsuch, J., concurring in the judgment).

Many (if not most) state courts have tracked the Supreme Court’s shifting understandings of lenity almost perfectly. Like the Supreme Court and their common-law predecessors, state courts applied lenity as a rule of strict construction at the Founding.¹⁸⁴See Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 896–97 (2004). But modern state court invocations of lenity have largely followed the modern experience in the federal courts: “The rule of lenity is frequently cited, but rarely taken seriously,”¹⁸⁵Id. at 901. where “seriously” means “is outcome-determinative.” To put a finer tip on it, many state courts have adopted the formulation of lenity that applies the rule only if a “grievous ambiguity” exists after all other interpretive tools fail to provide a clear interpretation, and they have cited the Supreme Court in ushering in that lenity-as-last-resort conception.¹⁸⁶E.g., State v. Welch, 595 S.W.3d 615, 623 n.4 (Tenn. 2020); State v. Hastey, 2018 ME 147, ¶ 28 n.16, 196 A.3d 432, 443 n.16; State v. Thonesavanh, 904 N.W.2d 432, 441 (Minn. 2017); State v. Guarnero, 2015 WI 72, ¶ 27, 867 N.W.2d 400, 408; State v. Bradshaw, 313 P.3d 765, 768 (Idaho Ct. App. 2013); People v. Gutman, 2011 IL 110338, ¶ 43, 959 N.E.2d 621, 633; Whack v. State, 659 A.2d 1347, 1351 (Md. 1995). Even those states that have not directly relied on Supreme Court precedent in applying a bite-less version of lenity “appear to follow it in practice, explicitly ranking lenity after legislative history, policy, and other considerations.”¹⁸⁷Price, supra note 184, at 904. Lenity as so described is but a distant cousin to the rule of strict construction that flew under the banner “lenity” that state courts applied prior to the twentieth century.

To be sure, not all states have tracked the Supreme Court’s understanding of the rule of lenity. Two states have codified the rule of lenity in its “strict construction” form,¹⁸⁸Id. at 902 & n.110; see Samuel A. Thumma, State Anti-Lenity Statutes and Judicial Resistance: “What a Long Strange Trips It’s Been”, 28 Geo. Mason L. Rev. 49, 66–83 (2020) (discussing the twelve jurisdictions with anti-lenity statutes). while twelve others have explicitly abolished lenity, at least as understood as a rule of strict construction.¹⁸⁹Id. at 903 & n.111. Yet many courts in states that have legislatively abrogated lenity continue to apply the rule anyway, and often in a way that tracks the federal conception of lenity as a last resort.¹⁹⁰Compare Reinesto v. Superior Ct. ex rel. Cnty. of Navajo, 894 P.2d 733, 735 (Ariz. Ct. App. 1995) (“When the meaning of a statute is unclear or subject to more than one interpretation, the rule of lenity requires us to resolve any ambiguity in favor of the defendant.”), and State v. Laib, 2002 ND 95, ¶ 15, 644 N.W.2d 878, 883 (“[T]he rule of lenity ‘serves as an aid for resolving an ambiguity; it is not to be used to beget one.’” (quoting United States v. Valencia-Andrade, 72 F.3d 770, 775 (9th Cir.1995))), with Ariz. Rev. Stat. Ann. § 13-104 (2020) (“The general rule that a penal statute is to be strictly construed does not apply to this title, but the provisions herein must be construed according to the fair meaning of their terms to promote justice and effect the objects of the law . . . .”), and N.D. Cent. Code Ann. § 1-02-01 (2008) (“The rule of the common law that statutes in derogation thereof are to be construed strictly has no application to this code.”). (Note that legislatively abrogating lenity actually brings state statutory interpretation much closer to the federal conception of lenity, which is almost never outcome-determinative, than the formerly employed “rule of strict construction.”) The state courts that cite Supreme Court precedent on lenity, whether they apply the newer or older version of the rule,¹⁹¹For an example of a modern state court decision applied the strict construction version of the rule but nonetheless relied on older Supreme Court precedent in doing so, see Ex parte Pate, 145 So. 3d 733, 737 (Ala. 2013) (quoting United States v. Resnick, 299 U.S. 207, 209 (1936)). do so often without much critical assessment. I could locate only two opinions that questioned the (newer, less stringent) federal approach. In the first, a single justice on the Connecticut Supreme Court argued that the U.S. Supreme Court’s approach, which arguably requires courts to look to legislative history and other extratextual sources to resolve an ambiguity before applying lenity, may undermine the rule’s purpose of providing fair warning to the public.¹⁹²State v. Lutters, 853 A.2d 434, 447–48 (Conn. 2004) (Zarella, J., concurring). The Iowa Supreme Court, in dicta, cautioned against uncritically adopting the “grievous ambiguity” formulation of the rule for similar reasons.¹⁹³State v. Hearn, 797 N.W.2d 577, 586–87 (Iowa 2011). Of note, in questioning the U.S. Supreme Court’s approach to lenity, both opinions borrowed arguments first advanced by Justice Scalia in a concurrence.¹⁹⁴Lutters, 853 A.2d at 447–48 (Zarella, J., concurring) (quoting United States v. R.L.C., 503 U.S. 291, 308 (1992) (Scalia, J., concurring in part and concurring in the judgment)); Hearn, 797 N.W.2d at 586–87 (quoting United States v. R.L.C., 503 U.S. 291, 307–11 (1992) (Scalia, J., concurring in part and concurring in the judgment)).

3.      Chevron Exceptionalism

Leading authorities in the literature on the bindingness of statutory interpretation methodology have identified the Chevron doctrine as “exceptional” among interpretive tools.¹⁹⁵Gluck, Intersystemic, supra note 39, at 1911; see also Bruhl, supra note 41, at 119–20 (comparing arguments for and against “Chevron exceptionalism” in realm of methodological precedent). While lower courts understand themselves as bound by higher courts’ methodological pronouncements to various degrees, federal courts most clearly and expressly apply the Chevron doctrine as binding methodological precedent.¹⁹⁶See Gluck, Intersystemic, supra note 39, at 1911. See generally Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1, 1 (2017) (explaining that federal courts of appeals largely applied Chevron doctrine and overwhelmingly deferred to agency interpretations). This Article suggests that Chevron is exceptional in state courts for the opposite reason—it is the federal interpretive tool that state courts are mostly likely to reject.

A quick qualifying point. This Article’s claim is not that some state courts’ refusal to defer to agency interpretations of state statutes is the only significant departure between state and federal courts on interpretive questions; others certainly exist. And, indeed, the importance of state-federal borrowing is bolstered by the differences. To name just two more, some state courts differ from federal courts in applying the presumption of extraterritoriality¹⁹⁷William S. Dodge, Presumptions Against Extraterritoriality in State Law, 53 U.C. Davis L. Rev. 1389, 1407–18 (2020). and the presumption against retroactivity.¹⁹⁸Compare Rivers v. Roadway Express, Inc., 511 U.S. 298, 310 (1994) (“Our decisions simply do not support the proposition that we have espoused a ‘presumption’ in favor of retroactive application of restorative statutes.”), with People v. Braden, 529 P.3d 1116, 1120 (Cal. 2023) (“Unless it has included an express savings clause, the Legislature must demonstrate its intent to limit the retroactive effect of an ameliorative change . . . .” (emphasis added)). What is perhaps unique or (at least most pronounced) about the states’ engagement with the Chevron doctrine is their willingness to consider state-level deference from first principles and sometimes to reject by name the federal doctrine.

Chevron tells courts to defer to an agency’s reasonable interpretation of an ambiguous statute it administers.¹⁹⁹See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). The Chevron doctrine takes its name from a 1984 case but was largely popularized by Antonin Scalia, both before and after he ascended to the Supreme Court.²⁰⁰See Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 352 (1994) (“Although Chevron itself was decided before Justice Scalia joined the Court, he has long been perceived as the Court’s most enthusiastic partisan of the two-step method associated with the decision.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 516–18. Chevron initially was viewed as a “conservative” doctrine,²⁰¹Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State 84 (2022). and even today one of its most strident defenders is considered “conservative.”²⁰²Adrian Vermeule, Common Good Constitutionalism: Recovering the Classical Legal Tradition 136–54 (2022). Overwhelmingly, however, “[m]uch of the recent criticism of Chevron deference comes from the jurisprudential ‘right,’ for lack of a better term.”²⁰³Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1091 (2016). No less than five members of the current Supreme Court have criticized the doctrine on various grounds,²⁰⁴Kristin E. Hickman & Aaron L. Nielson, The Future of Chevron Deference, 70 Duke L.J. 1015, 1016 (2021); see Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150–51 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)). joining their voices to those of some of Chevron’s most prominent detractors in the legal academy.²⁰⁵See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 315–17 (2014); Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 912, 918, 999–1001 (2017); Jack M. Beermann, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled, 42 Conn. L. Rev. 779, 779, 788 (2010). And the Supreme Court recently granted certiorari to consider whether to scrap Chevron altogether.²⁰⁶Loper Bright Enters. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023). Shortly before this Article was published, the Court formally overruled Chevron. See Loper Bright Enters. v. Raimondo, No. 22-451, 2024 WL 3208360, at *22 (U.S. June 28, 2024). If this Article’s thesis is correct, then the rate at which state courts will choose to forgo deferring to state administrative agencies will only increase. No longer do state courts need to reject federal interpretive law to reject deference to administrative agencies. Under Loper Bright, federal interpretive law itself now prohibits such deference.

The bases upon which individual Supreme Court members have questioned the Chevron doctrine in recent years are varied but few. One oft-invoked attack is that Chevron violates the separation of powers. In his 2013 dissent in City of Arlington v. Federal Communications Commission,²⁰⁷569 U.S. 290 (2013). Chief Justice John Roberts warned that it is inconsistent with the “constitutional structure” to defer to an agency’s interpretation of a statute unless the judicial branch first decides as a matter of law that Congress has delegated interpretive authority to the agency in the first place.²⁰⁸Id. at 327 (Roberts, C.J., dissenting). Less than a month later, Justice Clarence Thomas took an even stricter approach to the interplay between Chevron deference and the separation of powers in his concurrence in Michigan v. EPA.²⁰⁹576 U.S. 743 (2015). There, Justice Thomas argued that because the judiciary exercises the constitutional prerogative to “say what the law is,” Chevron unconstitutionally transfers the “judicial power” granted to the federal courts in Article III to administrative agencies.²¹⁰Id. at 761–62 (Thomas, J., concurring) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Likewise, to the extent Chevron grants the “‘force of law’ to agency pronouncements of private conduct” on which Congress did not legislate, Justice Thomas pointed out that Chevron also runs afoul of Article I’s vesting of the “legislative power” in Congress by allowing Article II agencies to exercise legislative authority.²¹¹Id. at 762. Before they joined the Supreme Court, then-Judges Gorsuch²¹²Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149, 1152–55 (10th Cir. 2016) (Gorsuch, J., concurring). and Kavanaugh²¹³Kavanaugh, supra note 204, at 2150–51. raised similar separation-of-powers concerns about the constitutionality of Chevron.

In addition to questioning Chevron on separation-of-powers grounds, each of the aforementioned jurists has argued that Chevron also is inconsistent with the Administrative Procedure Act (“APA”). Section 706 of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.”²¹⁴5 U.S.C. § 706; see Baldwin v. United States, 140 S. Ct. 690, 692 (2020) (Thomas, J., dissenting from denial of cert.); City of Arlington v. FCC, 569 U.S. 290, 316–17 (2013) (Roberts, C.J., dissenting); Gutierrez-Brizuela, 834 F.3d at 1153 (Gorsuch, J., concurring); Kavanaugh, supra note 204, at 2150 n.161. By deferring to an agency’s interpretation of an ambiguous statute, so the argument goes, the courts do not exercise their statutorily required role to decide all questions of law.²¹⁵See Scalia, supra note 200, at 513–14.

Chevron’s initial reception in the states was mixed. Professor Bernard Bell’s 2010 study counted eleven states, plus the District of Columbia, that explicitly adhered to a state-level analogue to Chevron.²¹⁶Bernard W. Bell, The Model APA and the Scope of Judicial Review: Importing Chevron into State Administrative Law, 20 Widener L.J. 801, 818, n.108 (2010). Those state courts thus deferred to state agencies’ interpretations of state statutes they administered. At the other end of the spectrum, Bell counted only two states—Delaware and Michigan—that explicitly rejected Chevron.²¹⁷Id. at 819; see also In re Complaint of Rovas Against SBC Mich., 754 N.W.2d 259, 270–71 (Mich. 2008); Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 383 (Del. 1999). Most states, however, “f[e]ll between the extremes of endorsing Chevron and repudiating it,” with some applying something that looks a lot like Chevron deference without citing the federal precedent, and others affording state agencies some but less deference than the Chevron doctrine would suggest.²¹⁸Aaron Saiger, Chevron and Deference in State Administrative Law, 83 Fordham L. Rev. 555, 559–60 (2014).

The tide has turned rather quickly in the decade since Bell’s study—more and more, state courts are rejecting the Chevron doctrine at the state level.²¹⁹See Daniel M. Ortner, The End of Deference: The States That Have Rejected Deference, Yale J. On Regul.: Notice & Comment (Mar. 24, 2020), https://perma.cc/JX9T-JAF3. One 2020 survey categorized nine states as expressly rejecting Chevron deference.²²⁰Daniel Ortner, The End of Deference: How States (and Territories and Tribes) Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines 71 (Mar. 11, 2020) (unpublished manuscript) (available at https://perma.cc/5N5U-WG7V). Those states are Arkansas, Colorado, Delaware, Kansas, Michigan, Mississippi, Utah, Wisconsin, and Wyoming. And since 2020, at least one more state has joined their ranks. See TWISM Enters., L.L.C. v. State Bd. of Registration for Prof’l Eng’rs & Surveyors, 172 Ohio St. 3d 225, 225–26, 2022-Ohio-4677, 223 N.E.3d 371, at ¶ 3. A different 2020 survey reported that fourteen states and the District of Columbia apply Chevron-type deference, while twenty-five states employ de novo review of agency interpretations of statutes (whether they reject Chevron by name or not), with the others applying a “hybrid” kind of review.²²¹Luke Phillips, Chevron in the States? Not So Much, 89 Miss. L.J. 313, 316 (2020). The “hybrid” standard most often refers to states that employ Skidmore-like deference, under which agency interpretations are afforded “weight” for their persuasive authority but are not binding on the courts. See id. at 320. No matter the method used to count a state’s adherence to Chevron, the trend is clear: states are increasingly rejecting Chevron.

Not only have the states’ recent repudiations of Chevron tracked the timing of the Supreme Court’s swelling skepticism of the doctrine, but they have also rejected Chevron on the same grounds that individual members of the Supreme Court have impugned it. The Ohio Supreme Court, the latest to disapprove of Chevron at the state level, started its analysis by recognizing that “[l]ike the federal Constitution, the Ohio Constitution creates a system of separation of powers.”²²²TWISM Enters., ¶ 30. Quoting one of Justice Thomas’s attacks on the related Auer²²³Auer v. Robbins, 519 U.S. 452 (1997). doctrine, the Ohio court noted that the state constitution, like the federal Constitution, empowered the judiciary, not administrative agencies, to provide authoritative interpretations of the law.²²⁴TWISM Enters. ¶ 33 (quoting Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring)). And it called agency deference “difficult to reconcile” with state and federal “separation-of-powers concepts.”²²⁵Id. ¶ 34. Then, tracking the similar federal critiques, the Ohio Supreme Court explained that Ohio’s Administrative Procedure Act requires Ohio courts to ensure that agency action is “in accordance with law,” a standard of review that “is not deferential at all.”²²⁶See id. ¶ 38. Like the Ohio Supreme Court, the Arkansas,²²⁷Myers v. Yamato Kogyo Co., 2020 Ark. 135, at 4, 597 S.W.3d 613, 617 (Ark. 2020). Mississippi,²²⁸King v. Miss. Mil. Dep’t, 2017-CC-00784-SCT, 245 So. 3d 404, 407–08 (Miss. 2018). and Wisconsin²²⁹Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 2018 WI 75, ¶¶ 43–54, 382 Wis. 2d 496, 536–45, 914 N.W.2d 21, 41–45. high courts have abandoned Chevron-like deference on state-specific separation-of-powers grounds. Also like Ohio, the apex courts of Michigan,²³⁰In re Complaint of Rovas Against SBC Mich., 754 N.W.2d 259, 265–66 (Mich. 2008). Arizona,²³¹Silver v. Pueblo Del Sol Water Co., 423 P.3d 348, 356 (Ariz. 2018). Montana,²³²Gold Creek Cellular of Mont. Ltd. P’ship v. Dep’t of Revenue, 2013 MT 273, ¶ 11, 372 Mont. 71, 310 P.3d 533, 535. and Wisconsin²³³Serv. Emps. Int’l Union, Local 1 v. Vos, 2020 WI 67, ¶ 84, 946 N.W.2d 35, 59. (in addition to at least one individual jurist in another state²³⁴See Prokop v. Lower Loup Nat. Res. Dist., 921 N.W.2d 375, 400 (Neb. 2019) (Papik, J., concurring) (arguing that Auer-like deference is inconsistent with state APA that calls for de novo review).) have relied in part on constitutional or statutory provisions requiring independent judicial review of statutes in rejecting Chevron-like deference, much like certain Supreme Court Justices have argued that the federal Administrative Procedure Act prohibits deferring to federal agencies’ statutory interpretations.²³⁵States continue to consider and approve legislation that prohibits deference to agency interpretations. See Tenn. Code Ann. § 4-5-326 (2013); Ariz. Rev. Stat. Ann. § 12-910(F) (2016); Wis. Stat. § 227.10(2g) (2015). And in Florida, voters recently approved a constitutional amendment that eliminated agency deference. See Fla. Const. art. V, § 21 (“In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule, and must instead interpret such statute or rule de novo.”). As one commentator summarized, the “most striking” thing about the states’ rejection of Chevron “is how closely the arguments against deference at the state level parallel those at the federal level,” even though additional state-specific rationales for rejecting Chevron likely exist.²³⁶Daniel Ortner, Ending Deference? Why Some State Supreme Courts have Chosen to Reject Deference and Others Have Not 22 (Jan. 1, 2021) (unpublished manuscript) (available at https://perma.cc/Y58W-TXXZ). And at least one commentator has urged state courts to reject Chevon deference for reasons unique to state law. See Aaron Saiger, Derailing the Deference Lockstep, 102 B.U. L. Rev. 1879, 1888 (2022) (“Just as it would be a mistake for states reflexively to incorporate Chevron—a mistake because Chevron’s strength depends upon so many institutional, political, and jurisprudential factors that the federal government does not share with the states—so too it would be a mistake for states reflexively to incorporate any federal rejection of Chevron into their own law.”). Cf. Hughes Gen. Contractors, Inc. v. Utah Lab. Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712, 717–18 (noting that national uniformity in administrative interpretation is not an issue in state court administrative law as it is at the federal level).

To be clear, my claim is not that a majority of states have overtly abandoned state-level equivalents to Chevron, only that some states—in no uncertain terms—have departed from federal law on an important question of statutory interpretation methodology. And those courts have relied, at least in part, on prominent critiques of the doctrine endorsed by members of the U.S. Supreme Court itself. Thus, even when state courts “reject” the Chevron doctrine as a matter of state interpretive law, they nonetheless “borrow” arguments promulgated by individual members of the Supreme Court.

III.      Evaluating State-Federal Methodological Borrowing

State courts borrow the U.S. Supreme Court’s tools of statutory interpretation as well as its explanations of those tools. This Part considers the reasons state courts do so and whether borrowing federal interpretive methodology is something state courts should do at all. That state-federal interpretive borrowing requires explanation and evaluation assumes, of course, that the most benign justification for the practice does not tell the whole story—namely, that the U.S. Supreme Court’s interpretive methodology is the best available, and state courts, recognizing this, choose to follow suit.²³⁷See Dodson, supra note 14, at 729. To the extent that explanation is part of the story at all, it likely plays only a supporting role. This Part explores other potential reasons—both internal and external to the law—that state courts choose to borrow federal interpretive methodology when interpreting state statutes. It concludes by arguing that the benefits of state-federal methodological borrowing outweigh its costs, but that, for certain interpretive tools, state courts should avoid uncritical acceptance of federal interpretive law.

A.      Why Methodological Borrowing Occurs

This Section identifies four reasons that may explain why state courts choose to borrow federal interpretive methodology to interpret state statutes. Two of the hypothesized reasons for borrowing interpretive methodology—increasing methodological legitimacy and partaking in a shared interpretive tradition—are specific to the field of statutory interpretation and reflect “internal” reasons a state court judge may choose to borrow federal interpretive law. The two remaining reasons—familiarity with federal law and good old-fashioned politics—overlap with the reasons that the literature on state-federal borrowing has identified as causes of borrowing in substantive (as opposed to methodological) areas of the law. And unlike the first two reasons that state courts may borrow federal interpretive methodology, a judge’s familiarity with federal law and judicial politics are “external” accounts that may explain state-federal borrowing in the statutory interpretation context.

1.      Legitimacy

The first explanation is that state courts may invoke federal interpretive tools in interpreting state statutes to increase the perceived legitimacy of their interpretations. Professor Richard Fallon’s influential work on the concept of legitimacy provides a helpful lens through which to understand this claim.²³⁸See generally Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018); see also Richard H. Fallon, Legitimacy and the Constitution, 118 Harv. L. Rev. 1787 (2005). Professor Fallon distinguishes among legal, sociological, and moral legitimacy.²³⁹Fallon, supra note 238, at 1794–1801. Legitimacy as a legal concept reflects whether a judicial ruling is “reasonable[] as a matter of law”;²⁴⁰Id. at 1794. sociological legitimacy considers whether “the relevant public regards [a judicial decision] as justified, appropriate, or otherwise deserving of support for reasons beyond” self-interest;²⁴¹Id. at 1795. and moral legitimacy refers to the “moral justifiability” of a decision.²⁴²Id. at 1796. A state court judge may plausibly conclude that applying a federal tool of interpretation will bolster the legitimacy of its interpretation of a state statute across each plane that Fallon describes. An interpretive tool that has received the Supreme Court’s imprimatur is likely to be a “reasonable” one; sociological research suggests that the public perceives a judicial opinion to be more legitimate when it uses “legalistic arguments” (think already-established canons of interpretation) rather than “extraconstitutional justifications”;²⁴³Dion Farganis, Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy, 65 Pol. Rsch. Q. 206, 213 (2012); see James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes Toward the United States Supreme Court, 47 Am. J. Pol. Sci. 354 (2003). and Fallon himself notes that “[p]ast judicial interpreters may be legitimate authorities whose decisions have a . . . moral claim to adherence.”²⁴⁴Richard H. Fallon Jr., The Statutory Interpretation Muddle, 114 Nw. L. Rev. 269, 306 (2019).

That a state court might increase the legitimacy of its interpretation of a statute by citing a Supreme Court–approved interpretive tool is intuitive. Consider a state supreme court contemplating whether to apply a tool of interpretation that its court has not yet recognized. Though the court could apply the tool without a case citation at all (it might, for example, cite Scalia and Garner’s treatise or Sutherland’s treatise) courts almost always choose to invoke precedent on point; doing so “suggest[s] that [the canons] are sufficiently authoritative because they were used in earlier cases.”²⁴⁵Lawrence M. Solan, Precedent in Statutory Interpretation, 94 N.C. L. Rev. 1165, 1186 (2016). And what court would be considered more authoritative on the legitimacy of an interpretive tool than the highest court in the land?²⁴⁶It is the Supreme Court of the United States, after all. U.S. Const. art. III, § 1. State courts seem to have internalized that the weight of a federal citation outweighs that of a sister state citation, at least on matters of interpretation; although state-federal borrowing is commonplace, state-state borrowing of interpretive tools is rare, if not nonexistent.²⁴⁷Indeed, most state courts do not apply sister state statutory interpretation methodology even when arguably required to do so. See Pohlman, supra note 9, at 528–29.

This high talk of legitimacy is essentially an overtheorized way of explaining a commonsense intuition among the state judiciary: when there is no precedent on point (or even if there is), a supporting citation to a U.S. Supreme Court case that applied the same interpretive tool in the same way makes the state court’s current application of the tool that much more plausible—and its interpretation that much more legitimate.²⁴⁸Relatedly, the U.S. Supreme Court reviews state courts on questions of federal law, so state courts may gravitate toward federal interpretive law even when interpreting state law so as not to develop two separate interpretive schemas: one for state statutes and another for federal statutes.

2.      Tradition and Jurisprudence

A second reason that a state court may choose to borrow federal interpretive methodology is to acknowledge that its approach to statutory interpretation lies comfortably within a broader American interpretive tradition. Recent literature on intersystemic interpretation has attempted to show that state courts employ distinct, potentially outcome-determinative approaches to statutory interpretation methodology.²⁴⁹E.g., Gluck, supra note 39, at 1982–85; Pohlman, supra note 9, at 516; see also Aaron-Andrew P. Bruhl, Interpreting State Statutes in Federal Court, 98 Notre Dame L. Rev. 61, 112–13. The same is presumably true with respect to the methodologies employed by certain state courts as compared to that of the federal courts.²⁵⁰See Bruhl, supra note 249, at 70. Though there are important differences in interpretive methodology between any one state court and the U.S. Supreme Court,²⁵¹See id.; see also Gluck, supra note 39. state and federal courts nonetheless see eye to eye on many interpretive questions. So when it comes to applying a new interpretive tool or simply abiding by the “rhetorical convention that one provides a citation for almost everything,”²⁵²Bruhl, supra note 41, at 116. the state courts may not feel constrained to consider only state-specific precedent on point. Both the federal courts and the state courts emerged from the English common-law tradition, both use American English grammar to understand and craft texts, and both are duty bound to faithfully apply the U.S. Constitution.²⁵³U.S. Const. art. VI. Despite disagreement on certain interpretive tools, the federal courts and the state courts come from and operate in the same interpretive tradition. Cross-jurisdictional borrowing of interpretive tools merely acknowledges and enforces this point.

Yet, despite the state and federal courts’ shared interpretive pedigree, the borrowing seemingly occurs in only one direction: state courts borrow federal interpretive methodology, but federal courts do not borrow state methodology.²⁵⁴See supra text accompanying notes 247, 248. So, even though they are cut from the same historical cloth, future developments in the American interpretive tradition are likely to be led by the federal courts, and the U.S. Supreme Court in particular. As the Supreme Court loudly dialed back its use of legislative history and relegated lenity to the back of the canon line, it in some sense “exert[ed] an agenda-setting power on state law as developed by state appellate courts.”²⁵⁵Bennett, supra note 15, at 810. The Supreme Court makes a methodological move, and the state courts soon after decide how to adjust their own interpretive conventions (if at all).

A useful framework for contextualizing the Supreme Court’s agenda-setting power over the interpretive tradition it shares with state courts on questions of statutory interpretation is by analogy to what Professor Richard Re has called “permissive interpretation.”²⁵⁶See generally Richard M. Re, Permissive Interpretation, 171 U. Pa. L. Rev. 1651 (2023) (defining and explaining applications of “permissive interpretation” in recent U.S. Supreme Court jurisprudence). Briefly, Re posits that Anglo-American jurisprudence recognizes “three basic rules”: the rule that courts must follow a text’s literal meaning, the rule that courts can deviate from that meaning to advance the lawmaker’s specific goals, and the rule that courts can deviate from literal meaning to avoid senseless harm.²⁵⁷Id. at 1654–55. Re claims that interpretations that are rendered under any of these rules—rules that broadly resemble textualism, purposivism, and pragmatism—are recognized as legally permissible, even if any one jurist may prefer to prioritize a different rule and would render a different interpretation.²⁵⁸Id. at 1655. On Re’s account, “the basic rules curb adventuresome forms of both purposivism and pragmatism, even as they add flexibility to strict textualism.”²⁵⁹Id.

In the American interpretive tradition, methodological pronouncements from the U.S. Supreme Court serve the same function as the three basic rules of statutory interpretation but at a more granular level. Like the basic rules do at the level of general interpretive theory, Supreme Court–explained interpretive tools provide a host of permissible methodological tools that state courts can take off the shelf and use in any given case. The content of those tools is “monitored and narrowed” by the Court itself, and its methodological pronouncements establish a “zone of interpretive discretion” that state courts tend to reason within.²⁶⁰Id. The series-qualifier canon? Yes, that is a legitimate tool of statutory interpretation.²⁶¹See Lockhart v. United States, 577 U.S. 347 (2016). “Updating” statutes to get with the times? No, that is not allowed.²⁶²See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1755–56, 1756 n.5 (2020) (Alito, J., dissenting). When the Supreme Court speaks, state courts tend to listen. Sure, a state court conceivably could stretch interpretive methodology beyond the rules articulated in U.S. Supreme Court opinions (both majority and separate). But in practice that does not happen; even when state courts reject certain federal interpretive tools, they almost always do so for reasons expressed by federal judges themselves.²⁶³See Pohlman, supra note 9, at 528–29; see also text accompanying note 247. Given the state courts’ appetite for borrowing the Supreme Court’s interpretive approach, the Supreme Court essentially determines which methodological moves are permissible for all courts interpreting statutes in the American interpretive tradition.

The plot thickens yet. Thus far, tracking prominent scholarship in the field, this Article has assumed that “federal interpretive methodology” makes up its own distinct body of “law.” On this view, courts are understood to possess the power to promulgate binding rules of statutory interpretation through opinions, a power presumably inherent to the judicial power. This view of precedent evinces a relatively “statute-like approach to the common law.”²⁶⁴Pohlman, supra note 9, at 517–22 (giving examples of such jurisdictions). State courts with this approach may, consistent with the literature, view federal interpretive law as a distinct body of posited law capable of being borrowed in interpreting a state statute. And, if that is the case, for the reasons explained above, federal methodology even ought to be borrowed given that it stems from the same interpretive tradition as state-level methodology.

But change the jurisprudential assumptions, and things begin to look a lot different, including how state and federal courts fit into the broader American interpretive tradition. As Professor Nina Varsava has recently shown, the jurisprudential priors that a court holds affects its interpretation of precedent (including methods of statutory interpretation developed in judicial decisions).²⁶⁵Nina Varsava, Stare Decisis and Intersystemic Adjudication, 97 Notre Dame L. Rev. 1207, 1235–63 (2022). A court that views the common law not as a species of judge-made law but instead as “a body of custom or principle that is distinct from legislative-type rules”²⁶⁶Pojanowski, supra note 9, at 528. is unlikely to view the federal statutory interpretation methodology found in judicial decisions as a meaningfully distinct body of “law” capable of being “borrowed” in the way that foreign substantive law can be borrowed.

Jurists rejecting the model of the common law that affords judges the power to craft binding methodological rules from scratch may nonetheless choose to “borrow” from federal cases for a jurisprudentially principled reason: perhaps the principles of statutory interpretation are best thought of as a matter of general law.²⁶⁷See Baude & Sachs, supra note 42, at 1137–38; Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 Wm. & Mary L. Rev. 921, 942 (2013). See generally William Baude, The 2023 Scalia Lecture: Beyond Textualism?, 46 Harv. J.L. & Pub. Pol’y 1331 (2023). General law “refers to rules that are not under the control of any single jurisdiction, but instead reflect principles or practices common to many different jurisdictions.”²⁶⁸Nelson, supra note 13, at 505. A state court judge who understands interpretive methodology to be a species of general law, then, sets out to “find” statutory interpretation principles rather than “make” them herself.²⁶⁹Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527, 530–31 (2019). In the pre-Erie era, statutory interpretation methodology was likely understood to be general law, subject to certain pockets of “local” law where a state purposefully departed from a general interpretive norm through statute or other local variation. See Bruhl, supra note 249, at 106. In its purest form, general law statutory interpretation principles would be gleaned by studying the interpretive methodologies of all state and federal courts and discerning certain widely accepted interpretive practices.²⁷⁰A recent article by Professor Chas Tyler argues for “general law” statutory interpretation. See Charles W. Tyler, Common Law Statutes, 99 Notre Dame L. Rev. 669, 682, 689 (2023). Professor Tyler’s proposal is different than the one advanced here. Tyler encourages courts to look to general substantive law in resolving statutory ambiguities, not general methodological law. Given restraints on time and resources, however, a judge influenced by the general law model may instead look to the U.S. Supreme Court’s opinions as a proxy for generally accepted American interpretive principles. And states that borrow the Supreme Court’s methodological pronouncements for that reason in fact reinforce the very reason for their borrowing: the more often state courts look to the U.S. Supreme Court as the arbiter of the general law of statutory interpretation methodology, the more likely the Supreme Court’s pronouncements will in fact reflect (or, perhaps, portend) the interpretive principles generally applied by American courts.

Consider further the judge who rejects both the judge-made and general-law approaches to interpretive methodology and instead views judicial philosophy as “inherently personal.”²⁷¹Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1345 (2018). Even that judge may choose to borrow methodological pronouncements for a jurisprudentially grounded reason. Borrowing on that view would occur not due to the persuasiveness of the federal courts’ “law” of interpretation, but rather because federal interpretive tools serve “as a model” of what acceptable tools of interpretation in American courts look like.²⁷²Bennett, supra note 15, at 811 (emphasis omitted). Even judges who view interpretive methodology as the subject of personal preference place “heavy reliance on case law,” in part to “demonstrate that an argument falls within the culture of legal reasoning and is thus entitled to some level of deference.”²⁷³Solan, supra note 245, at 1186. Philosophically rigorous explanations of an interpretive tool are important; in judicial opinions, however, precedent—even another jurisdiction’s precedent—is better. Borrowing federal interpretive methodology is just one more way, then, that these state court jurists can bolster their own preferred methodological approaches.

To wrap up this subsection, whether viewed through the lens of judge-made positive law, as a species of general law, or as a matter of personal preference, the statutory interpretation methodology applied by the U.S. Supreme Court has an important role to play in both shaping and reflecting a broader American interpretive tradition. State courts recognize and contribute to the Court’s prominent role by borrowing its methodological pronouncements. In doing so, the state courts make clear that they themselves partake in the shared American interpretive enterprise.

3.      Familiarity and Prestige

The final two reasons that a state court may choose to borrow federal interpretive methodology are largely external to the law. The first is the prestige of federal law and its attendant familiarity with state bench and bar. State court jurists may simply be more familiar with the federal law of interpretation than they are with their specific state’s law of interpretation (if their state has an identifiable or distinct law of interpretation at all²⁷⁴See Pohlman, supra note 9, at 522–24.). This familiarity may in turn cause state court jurists to look for and trust federal precedent on point, especially if the state court decision breaks new ground. But even in more humdrum applications of oft-repeated general principles, a state court jurist, no doubt familiar with Bostock, may cite that case as a readily recognized off-the-shelf explanation of textualism. The familiarity probably extends to large swaths of the bar as well.²⁷⁵Infra notes 276–287. A state court judge drawing on his or her familiarity with federal law is likely to reach an audience that likewise finds the allusion to federal law familiar. And in a legal system where judicial opinions are judged by how well they continue the story of opinions past,²⁷⁶Cf. Ronald A. Dworkin, “Natural” Law Revisited, 34 Fla. L. Rev. 165, 168 (1982). an opinion reader familiar with the cases a judge cites is perhaps an opinion reader more likely to be persuaded by novel applications of those very cases.²⁷⁷Readers of this Article may point out, on the contrary, that “familiarity breeds contempt.” But consider the end of that proverb as well: “without a little familiarity it’s impossible to breed anything.

The reasons for state court jurists’ putative familiarity with federal interpretive tools are plentiful. At a high level of generality, an overarching explanation may be that “American legal traditions historically have focused on federal law at the expense of state law.”²⁷⁸Dodson, supra note 14, at 736. In his work on state-federal borrowing, Professor Scott Dodson has identified a number of ways the legal community’s affinity for federal law manifests itself, two of which are relevant for questions of interpretation: law schools emphasize federal law over state law and federal law is viewed by the bench, bar, and public as more prestigious than state law.²⁷⁹Id. at 736–37, 739.

Each has some explanatory force for substantive state-federal borrowing, and each may help explain a state court judge’s decision to cite federal interpretive law in interpreting a state statute as well. If a judge’s initial exposure to the various theories of statutory interpretation included studying Church of the Holy Trinity, Caminetti v. United States,²⁸⁰242 U.S. 470 (1917). and TVA v. Hill²⁸¹437 U.S. 153 (1978). in a legislation and regulation class during law school,²⁸²E.g., William W. Buzbee, Legislation and Regulation (2017) (syllabus), https://perma.cc/W5EW-82JV. those cases and their offspring are likely to spring to that judge’s mind when faced with a comparable state-level interpretive conundrum.²⁸³E.g., Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 535–38 (Iowa 2017) (citing Church of the Holy Trinity, 143 U.S. 457 (1892)); In re. Strandell, 562 A.2d 173, 175–76 (N.H. 1989) (citing Hill, 437 U.S. at 190); Hollowell v. Jove, 279 S.E.2d 430, 433 (Ga. 1981) (quoting Caminetti, 242 U.S. at 490). In a similar way, a judge’s post-law school practice experience almost inevitably touched on federal issues given that “all but the most local practices have interactions with federal law.”²⁸⁴Dodson, supra note 14, at 737. And unlike state law, “[e]very issue of law resolved by a federal judge involves interpretation of text.”²⁸⁵Scalia, supra note 116, at 13. It is not an unreasonable assumption, then, that state court jurists are at least familiar with federal analogues to state-level interpretive questions. And that is even more so true for state court judges who had acute exposure to federal interpretive law before ascending to the bench through, for example, a federal judicial clerkship, a stint as a federal prosecutor, a big law firm partner, or a law professorship.

The legal community’s familiarity with federal law also suggests a less fanciful reason for borrowing: laziness. It may simply be the case that state court judges reflexively borrow federal law without giving the decision to borrow much thought at all. Reflexive state court borrowing of federal interpretive tools is thus analogous to the “lockstep” phenomenon in state constitutional law—that is, “the tendency of some state courts to diminish their constitutions by interpreting them in reflexive imitation of the federal courts’ interpretation of the Federal Constitution.”²⁸⁶Jeffrey S. Sutton, 51 Imperfect Solutions: States And The Making Of American Constitutional Law 174 (2018). State courts may unthinkingly adopt to federal interpretive methodologies (or substantive interpretations, as with lockstepping) simply because a federal court applied that methodology first.

A related point is that federal law is seen as more prestigious than state law. Federal law’s perceived prestige among the bench, bar, and public may bolster the perceived legitimacy of a state court statutory interpretation that relies upon it. The popular press and countless legal blogs and Twitter accounts report on the latest high-stakes federal cases that interpret federal law. While state courts are receiving heightened media attention in light of Dobbs v. Jackson Women’s Health Organization,²⁸⁷142 S. Ct. 2228 (2022). state courts continue to receive less media coverage than their federal counterparts. The respective attention paid to federal versus state court decisions is not necessarily a bad thing—U.S. Supreme Court interpretations affect the law in all fifty states; state court decisions do not. But it remains the case that the U.S. Supreme Court dominates national and local headlines in ways that state supreme courts do not, even though both are courts of last resort. This forced familiarity with federal law may be one more reason why state courts often adopt federal interpretive methodology but rarely (if ever) borrow the statutory interpretation methodology (and only the methodology) of a sister state.

4.      Politics

Lastly, the most cynical explanation for state courts’ willingness to borrow federal interpretive tools in interpreting state statutes may, in some instances, boil down to (judicial) politics. Broad interpretive theories are, in theory, apolitical. Defenders of textualism posit that the theory allows judges “to determine impartially . . . what the law is”²⁸⁸Neil Gorsuch, A Republic If You Can Keep It 132 (2019). and are quick to point to outcomes reached on the basis of textualism that are not politically “conservative,” Bostock chief among them. Defenders of purposivism similarly eschew the idea that the theory necessarily leads to politically progressive results and instead promotes Congress’s role as purveyor of public policy.²⁸⁹Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 85–88, 99 (2005). But one need not be a committed legal realist to agree with the observation that “[j]ust as originalism has become code for ‘conservative’ and living constitutionalism code for ‘progressive,’ textualism has become a conservative brand and purposivism its primary competitor.”²⁹⁰Margaret H. Lemos, The Politics of Statutory Interpretation, 89 Notre Dame L. Rev. 849, 901 (2013) (reviewing Scalia & Garner, supra note 86).

In recent years, more acute interpretive questions touching on administrative law have also split along predictable left-right ideological lines. The Justices who voted to overturn Auer deference came from the Court’s “conservative” wing,²⁹¹See Kisor v. Wilkie, 139 S. Ct. 2400, 2425 (2019) (Gorsuch, J., concurring) (joined by Thomas, J. in full, and Kavanaugh, J. and Alito, J. in part). and those who have signaled their displeasure with Chevron hail from the same camp.²⁹²See supra notes 203–06 and accompanying text. The Justices’ disputes over the major questions doctrine (and the nondelegation doctrine, to the extent it can be characterized as a tool of statutory interpretation) split along the same lines.²⁹³E.g., West Virginia v. EPA, 142 S. Ct. 2587, 2616, 2626 (2022); Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting) (joined by Roberts, C.J. and Thomas, J.).

What does all this mean for state court jurists? Given that state-level litigation often does not generate as many headline-grabbing decisions as do federal court decisions, selective borrowing of federal interpretive methodology may be an easy way for a state court judge to signal with which “team” he or she most aligns. Recent state court practice bears this out. Professor Abbe Gluck has highlighted that as the makeup of Michigan’s Supreme Court has fluctuated in the last two decades, so too has Michigan’s interpretive methodology: “[C]onservative judges have pushed for textualism while progressive judges have defended a more purposive approach.”²⁹⁴Lemos, supra note 290, at 905. And to that end, each camp has selectively borrowed U.S. Supreme Court case law to support its case. The conservatives, for example, explicitly borrowed Justice Scalia’s critique of legislative history in rejecting Michigan’s reliance on legislative acquiescence as a tool of statutory interpretation, noting that both are a “frail substitute[] for bicameral vote upon the text of a law and its presentment to the [executive].”²⁹⁵Donajkowski v. Alpena Power Co., 596 N.W.2d 574, 582 (Mich. 1999) (quoting Thompson v. Thompson, 484 U.S. 174, 192 (1988)). And for its part, the progressives borrowed the Court’s observation that judges should consider both the plain meaning of a statutory word as well as “its placement and purpose in the statutory scheme.”²⁹⁶U.S. Fid. & Guar. Co. v. Mich. Catastrophic Claims Ass’n, 795 N.W.2d 101, 107–08 (Mich. 2009) (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)).

In a state like Michigan where judges are elected rather than appointed, which “team” a jurist aligns herself with may have real consequences. In Gluck’s telling, the former Chief Justice of the Michigan Supreme Court “suffered a surprise reelection defeat by a purposivist judge who actively campaigned against, among other things, his textualist interpretive methodology.”²⁹⁷Gluck, supra note 9, at 1809. Of course, the signaling function of borrowing a certain methodology—as explained by certain Supreme Court Justices—may work to a jurist’s electoral advantage as well. A state supreme court justice in a deep red state may simply find it both theoretically appealing and politically astute to borrow Supreme Court interpretive tools that, say, curb applications of the rule of lenity and limit the power of administrative agencies to interpret statutes—and in so doing, associate herself with the Justices who have staked out similar commitments.

One reason that state court jurists may choose to borrow certain federal interpretive tools but not others may be their ambition to ascend to the federal bench.²⁹⁸Cf. Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 623 (1981) (“The federal bench constitutes a relatively small elite. Its judges are better paid and have more prestige than state judges; more competent lawyers are, therefore, attracted to the federal bench.”). Interestingly, in his work on state-federal borrowing, Professor Thomas Bennett argues that state court rejection of federal law could serve the same purpose.²⁹⁹Bennett, supra note 15, at 815. By rejecting certain federal court precedents when faced with analogous state law questions, suggests Bennett, state court jurists “signal to partisan groups their ideological sympathies in national political battles.”³⁰⁰Id. In one sense, I agree: a state court judge who “borrows” recent criticisms of Chevron in reality “rejects” Chevron itself (which, at least for now is good law) and so signals her support for what has become a conservative cause on a national level. In another sense, I think pure borrowing of federal law can have the same signaling effect that rejecting federal law does: a judge who cites two Justice Thomas opinions explaining the rule against surplusage, while far from controversial or even noteworthy in isolation, may subtly hint that he considers himself cut from the same intellectual cloth.³⁰¹E.g., State v. Thonesavanh, 904 N.W.2d 432, 437 (Minn. 2017); Mathis v. State, 784 S.E.2d 98, 102 (Ga. Ct. App. 2016) (relying in part on Supreme Court explanation of how disjunctives operate); Ojo v. Farmers Grp., Inc., 356 S.W.3d 421, 445–46 (Tex. 2011) (Willett, J., concurring) (citing Supreme Court refutations of post-enactment legislative history). And by citing federal law at all, state court jurists show that they are “in the know” on federal developments in the law and maybe, just maybe, would make good federal judges themselves.

B.      Whether Methodological Borrowing Should Occur

That methodological borrowing occurs is one thing—whether it should occur is another.

Those who have assessed state-federal borrowing both in the abstract and on matters of interpretive theory in particular caution against uncritical acceptance of federal law by state courts. Their concerns with borrowing can, for the most part, be separated into two main buckets. One line of thinking warns against perfunctory borrowing on strictly legal grounds; another line of scholarship raises questions about whether borrowing makes sense in light of the respective institutional capacities of state and federal courts. Both kinds of concerns are worth taking seriously and should give state courts some pause before borrowing federal interpretive law. Nonetheless, for reasons explained below, state courts’ borrowing of federal statutory interpretation methodology is a welcome trend and, subject to certain caveats, ought to be encouraged.

Of the legal objections to borrowing, the strongest is perhaps that federal interpretive law should not be applied by state courts because state courts may have³⁰²See Bruhl, supra note 9, at 63–64; Gluck, supra note 9, at 1829–30. or should have³⁰³See Pojanowski, supra note 9, at 494 (arguing that state courts, as common-law courts, should take a more flexible approach to statutory interpretation that federal-style textualism). a law of interpretation that is meaningfully distinct from the federal courts. Mixing state and federal interpretive tools might, some may fear, taint a state court’s well-established approach to interpreting statutes.³⁰⁴See Pohlman, supra note 9, at 517–22 (cataloguing states that adhere to methodological stare decisis for statutory interpretation). But even if one were to believe, as I do, that federal interpretive tools should not displace settled state-level interpretive principles merely because they were promulgated by a federal court, this concern does not categorically counsel against methodological borrowing. It merely suggests that state courts should be discerning in deciding which federal tools of interpretation to borrow. Borrowing, recall, is permissive, not mandatory. So state courts that adhere to methodological stare decisis may not need to, and indeed probably should not, borrow a federal interpretive tool when a state-specific rule will do.³⁰⁵See Gluck, supra note 9, at 1822–24 (explaining how methodological stare decisis works in state courts that follow it). But when the state’s rules run out, it would not be inconsistent with a state’s interpretive methodology to borrow federal law to fill in the gaps.³⁰⁶See infra notes 324–30 and accompanying text. That situation is precisely when state-federal borrowing may be most beneficial.

The need for increased introspection before borrowing reaches its zenith when the reasons underlying a federal interpretive tool—usually a substantive canon—may not apply in state court. Recall that the federal major questions doctrine and constitutional avoidance canon are based, at least in part, on federal separation-of-powers principles. Other substantive canons are rooted in federal constitutional principles as well.³⁰⁷See Barrett, supra note 122, at 168–77. State constitutions, however, often allocate government powers in ways that differ from the more formalist federal tripartite division of powers.³⁰⁸See Pohlman, supra note 39, at 1757; Zoldan, supra note 162, at 388. Thus, before borrowing a federal interpretive tool that has constitutional underpinnings, it is especially important that state courts carefully consider whether the tool is consistent with their own foundational law.³⁰⁹See Zoldan, supra note 162, at 373–83. Maybe the federal constitutional principle coheres with a state’s constitutional structure; maybe it does not. Grappling with the federal tool and exploring the reasons for its existence will serve state courts well, even if they ultimately decide not to borrow the federal rule. As with substantive federal law, when it comes to deciding whether to borrow substantive canons, “reasoning matters more than results.”³¹⁰Dodson, supra note 14, at 752.

Another legal objection to borrowing is that a state court that borrows federal interpretive law may damage its sovereign reputation and contribute to the idea that parity between state and federal courts is a myth.³¹¹See id. at 748–51; Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1105 (1977). The “parity” debate refers to state courts’ relative competence to enforce federal constitutional guarantees, but the idea that state courts are somehow not as adept at deciding legal questions in general as are federal courts is a theme that may carry over to the realm of statutory interpretation. When a state court chooses to borrow federal interpretive methodology when it could apply state interpretive principles or reason from state law premises to reach the same result, the fear is that state courts may essentially concede that federal courts are more refined interpreters of statutes than they are. At its most extreme, one commentator warns that state courts that follow federal law “risk being seen as simple-minded dependents of their smarter older sibling.”³¹²Dodson, supra note 14, at 748.

On matters of interpretive methodology, as opposed to substantive interpretations, however, this concern may not have as much bite. Scholars are rightfully leery of encouraging state courts to follow substantive interpretations of federal statutes just because federal courts said so first.³¹³See Bennett, supra note 15, at 776; Dodson, supra note 14, at 747. The same argument warning has been sounded for state constitutional interpretation as well. See generally Sutton, supra note 286, at 174–78; William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Borrowing in the constitutional context presents its own issues that are partly distinct from those in the statutory interpretation context; for example, as compared to the federal Constitution, state constitutions are relatively new, are much more specific, and are more easily amended. A few considerations cut against rote borrowing on matters of substance: perhaps the federal statute is meaningfully different from the state statute; perhaps what makes sense as a national policy is an ill fit to address state-level problems; perhaps states’ divergence on substantive interpretations could lead to new and innovative policy proposals at the national level;³¹⁴See Dodson, supra note 14, at 746–47. or perhaps the federal courts’ substantive interpretation simply was not a good one.³¹⁵See Bennett, supra note 15, at 778–86 (describing state courts’ rejection of federal interpretation of federal antitrust statute). Especially where the federal interpretation is questionable, states risk a reputational blow by blindly following the federal government’s lead.

But borrowing federal statutory interpretation methodology, and only the methodology, is far less likely to implicate the parity debate and is far less likely to hurt a state court’s sovereign reputation. If anything, the opposite is likely. In the past half century, academic and judicial study of statutory interpretation methodology has exploded, and the arguments for and against various interpretive moves have become increasingly sophisticated.³¹⁶See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2053–56 (2017). State courts that choose to engage with the latest arguments—which are often refined at the U.S. Supreme Court—are likely to be viewed as “in the know” on important methodological debates rather than as mere followers of federal law. Of course, for a state court to be viewed as a contributor rather than merely a consumer of these debates, it must explore the reasons that the Supreme Court has, say, favored administrative deference or a strict conception of lenity, and it must then decide whether its state’s concomitant separation-of-powers or due process principles are sufficiently similar to the federal principles so as to warrant borrowing. It becomes much more difficult to level an argument that a state court is not on par with a federal court on questions of methodology if state courts exercise enough introspection and transparency before borrowing federal interpretive law.³¹⁷Id. Indeed, should state courts take seriously their role as one contributor among many in the interpretive methodology conversation, “state court methodological developments may be used to inform and change federal statutory theory and practice.”³¹⁸Gluck, supra note 39, at 1755. Who knows? If and when the Supreme Court decides to abandon Chevron deference, perhaps the Supreme Court itself will “borrow” from the experience of those state courts that have already turned away from the doctrine at the state level.³¹⁹See Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of cert.) (“Several state courts have refused to import a broad understanding of Chevron in their own administrative law jurisprudence.”).

A third argument against state-federal methodological borrowing in statutory interpretation focuses not on legal theory but instead on the relative institutional capacities between the U.S. Supreme Court and state courts.³²⁰See Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 886 (2003) (“The central question is not ‘how, in principle, should a text be interpreted?’ The question instead is ‘how should certain institutions, with their distinctive abilities and limitations, interpret certain texts?’”). Professor Bruhl has argued that state courts should diverge from the U.S. Supreme Court’s interpretive methodology “both at the level of general approach and at the level of particular canons of interpretation” given the institutional differences between the two.³²¹Bruhl, supra note 9, at 439. In particular, Bruhl suggests that disparities in caseloads, judicial resources, and the quality and quantity of briefing between state courts and the Supreme Court means that state courts should use simpler methods of interpretation than those the Court uses—for example, state courts should temper their reliance on legislative history and whole code arguments and display a greater willingness to defer to prior dicta and administrative interpretations.³²²Id. at 470–84. Bruhl does acknowledge that institutional differences many vary by state and that certain differences between the Supreme Court and state high courts are less pronounced than differences between the Supreme Court and the lower federal courts or state trial courts.³²³Id. at 440, 462.

Even accepting that state high courts and the U.S. Supreme Court have meaningfully different institutional capacities (though surely the differences are less pronounced than those between the Supreme Court and state trial courts), it does not automatically follow that state high courts should diverge from the Supreme Court’s interpretive methodology. What follows instead, as Bruhl himself posits, is that state “[c]ourts should use methods of decisionmaking that make sense in light of [their respective] circumstances.”³²⁴Id. at 496. Sometimes—perhaps even oftentimes—borrowing a Supreme Court–approved interpretive tool will make sense for state high courts. Methodological borrowing, as a permissive rather than mandatory exercise, allows each state court to decide for itself whether a particular federal interpretive tool meshes with its own interpretive approach and institutional capacity. It may, for example, be easier for a state high court to conduct state-level legislative history research than it is for the Supreme Court to research federal legislative history.³²⁵Nebraska, for example, has a unicameral legislature of only forty-nine members, and all legislative history since 1970 has been digitized. See Legislative Histories, Nebraska Legislature, https://perma.cc/4WR7-ZJ39. See also Nina Varsava, Derivative Recognition and Intersystemic Interpretation 28 n.49 (May 8, 2023) (unpublished draft) (on file with author). (Query, though, whether borrowing from the current federal law of interpretation would support resort to legislative history.) When institutional factors are considered alongside legal ones, the takeaway remains the same: the reasons that a state court chooses to borrow federal interpretive methodology matters just as much as its decision to borrow (or not). And a state court opinion that seriously engages the question whether to borrow a federal interpretive tool not only justifies its methodological approach; in a system where “giving reasons is both the norm and the ideal,”³²⁶Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 633 (1995). it also strengthens the case for its interpretation of the statute under review. Though borrowing a federal interpretive tool may often be a good choice for a state court, by explaining whether the federal tool makes sense in state court, state courts may, ironically, decrease the rate at which they borrow.

Another reason to favor state-federal methodological borrowing exists as well. The more that state courts borrow federal interpretive methodology, the more that state and federal interpretive will resemble and reinforce each other. Practitioners litigating statutory ambiguities will be able to speak more or less the same language in crafting arguments about statutory meaning in both state and federal court and will be better equipped to inform those regulated by both state and federal statutes of what their primary obligations are. As with matters of procedure, vertical uniformity on questions of methodology may promote predictability, professionalism, simplicity, efficiency, and the appearance of judicial neutrality.³²⁷See Baldacci, supra note 45, at 1281–88 (arguing that even a weak form of methodological precedent promotes consistent outcomes, improves communication between the legislatures and courts, avoids oversimplifying interpretation, and allows for jurisprudential disagreement); Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State Uniformity in Three States That Have Not Adopted the Federal Rules of Civil Procedure, 46 Vill. L. Rev. 311, 311–12 (2001).

One final, counterintuitive point. I have suggested thus far that borrowing is at its best, and is best implemented, when state courts give reasons for borrowing federal interpretive methodology. I stand by that claim, especially for substantive canons with constitutional underpinnings. But it does not automatically follow, as others who have cautioned against borrowing have assumed, that failing to justify methodological borrowing necessarily means that blind borrowing is bad. On the contrary, some if not most methodological borrowing is advantageous for the reasons just described even if the state court does not explain its decision to borrow (whether intentionally or reflexively). The reason stems from what Professor Cass Sunstein has called “incompletely theorized agreements.”³²⁸Cass R. Sunstein, Incompletely Theorized Agreements, 108 Harv. L. Rev. 1733 (1995).

As applied to interpretation, the basic idea is that “judges who disagree on high-level principles may converge upon particular rules, canons, or statutory techniques.”³²⁹Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation 125 (2006). To take it a step further, judges who hold no strong views on the high-level principles undergirding a particular interpretive tool might apply a tool already well established in the federal courts without justifying its application at home from first principles. Judges of various theoretical stripes might also borrow without giving the matter any thought. When state courts borrow federal interpretive methodology without comment, they express their incompletely theorized (or not-at-all theorized) agreement with a particular federal tool. And they are not wrong to do so. The most widely accepted interpretive tools (e.g., those listed in Scalia and Garner’s treatise) are applied by judges who profess to be textualists, purposivists, pragmatists, and pluralists alike. Given state court judges’ “limited time and capacities,” a state court judge who finds an interpretive tool in a Supreme Court opinion may find the methodological “precedent [to be] liberating,” and may reasonably borrow the tool without herself “search[ing] for full theorization.”³³⁰Sunstein, supra note 328, at 1749. State court judges need not reinvent the statutory interpretation wheel when state interpretive law does not provide an answer. Methodological borrowing offers the state court jurist a resource-conserving, legally defensible path to resolution. Unlike the canons listed in Scalia and Garner’s treatise, however, state court borrowing of interpretive tools that depend upon deeply contested premises of public law theory—like Chevron or the major questions doctrine—is still better accompanied by full judicial explanation.

IV.      Toward Formalism in Statutory Interpretation

This final Part posits that state courts’ borrowing of federal interpretive tools is further evidence that statutory interpretation methodology is tending toward formalism and that it is doing so in two distinct ways.

First, as has been well documented over the past two decades, statutory interpretation methodology is increasingly textualist—and hence, increasingly formalist.³³¹See Scalia, supra note 116, at 25 (“Of all the criticism leveled against textualism, the most mindless is that it is ‘formalistic.’ The answer to that is, of course it’s formalistic! The rule of law is about form.”); John F. Manning, Constitutional Structure and Statutory Formalism, 66 U. Chi. L. Rev. 685, 685 (1999) (calling textualism the “operational arm” of “statutory formalism”). Indeed, it is almost obligatory for statutory interpretation scholars to mention that Justice Kagan has confidently declared “we’re all textualists now.”³³²Harvard Law School, The 2015 Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube (Nov. 25, 2015), https://perma.cc/88SM-C2D8. But cf. West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting) (“It seems I was wrong.”). The rise of textualism has naturally coincided with the U.S. Supreme Court’s increased reliance on the canons of interpretation.³³³See Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev. 163, 191 (2018) (reviewing William N. Eskridge Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution (2016)) (“Theories of interpretation have been relentlessly moving toward textualism, and, with that move, interpreters have attempted to fill gaps with standard canonical practice, claiming that our ‘law of interpretation,’ including our constitutional law, depends upon canons.”); John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1287 (2010) (noting the “Supreme Court’s renewed interest in canons of construction, both substantive and procedural . . . .”). Frequent invocation of canons and other ex ante principles of interpretation evince textualists’ push for a more formalist interpretive methodology and thus a more “rule-like approach to interpretation.”³³⁴Caleb Nelson, What is Textualism?, 91 Va. L. Rev. 347, 350 (2005); see Frederick Schauer, Formalism, 97 Yale L.J. 509, 510 (1988).

Textualist opinions at the federal level also offer state courts rule-like methodological statements ripe for borrowing. Not only that, but the relative dearth of more purposivist-leaning opinions and stated interpretive assumptions in recent years means that state courts looking to borrow from Supreme Court opinions may find mostly textualist-compatible options on the methodological menu. That is, when the Supreme Court issues an important statutory interpretation decision of the kind likely to be borrowed by state courts, today’s Court is likely to reach its conclusion by invoking the plain meaning rule and any relevant canons of interpretation. The Court is unlikely to stress statutory purpose or look to legislative history in interpreting statutes, leaving state courts with precious little to borrow in the way of non-textualist interpretive principles. Thus, when state courts decide to borrow federal interpretive law, they are overwhelmingly likely to borrow principles consistent with a broadly textualist methodology.³³⁵The state courts’ willingness to cite Bostock bears this out. See supra Section II.B.1. While it is possible that some of the state courts’ recent proclivity for textualism occurred by osmosis or is otherwise not traceable to federal decisional law, state-federal methodological borrowing has no doubt played an important role in textualism’s ascendance in state courts. Buoyed by methodological borrowing, it is increasingly clear that state courts, like their federal counterparts, are textualists now.³³⁶See Gluck, supra note 9, at 1829–30.

Second, state level statutory interpretation methodology also evinces a trend toward formalism because it shows state courts’ increasing willingness to apply “clearly defined, ex ante interpretive rules arranged to be applied in a consistent order,” even when the content of the rules to be applied is not formalist (e.g., textualist).³³⁷Id. at 1754 n.8. By borrowing tools that the Supreme Court has already expounded upon, state courts closely resemble the lower federal courts, which some argue are bound to apply (and actually do apply) the Supreme Court’s “methodological precedent” when interpreting statutes.³³⁸See Bruhl, supra note 41, at 145–48; Gluck, supra note 39, at 768. To be sure, “[a]ttraction to canons and formalism is not the same thing as adherence to [methodological precedent], but they are compatible and reinforcing impulses.”³³⁹Bruhl, supra note 41, at 160. State courts interpreting state statutes are, of course, not bound to apply federal interpretive tools.³⁴⁰See supra Section I.B. But their frequent resort to borrowing shows that, like the federal courts, the state courts understand federal interpretive pronouncements to constitute “methodological precedent” that they can borrow, just as they might borrow the substantive precedent of a sister state.

When state interpretive law does not help resolve a statutory ambiguity, state courts have narrowed their own discretion by searching for more “law” to apply in the Supreme Court’s methodological pronouncements. Thus, rather than “assum[ing] that when the statutes [and state interpretive law] really run out, there must be nothing to do but some kind of judge-made law,”³⁴¹Baude, supra note 267, at 1347. state courts are instead choosing to borrow the already well-established law of interpretation as applied by the federal courts. Maybe the federal courts “made” that law, maybe they “found” it; the answer likely turns on one’s jurisprudential priors.³⁴²See supra Section III.A.2. But whether the Supreme Court’s methodological precedent is best viewed as posited law or general law or common law, state courts largely have recognized it as “law” of some kind. By borrowing federal interpretive law, state courts therefore promote “a central formalist goal”—namely, “to reduce the burdens of on-the-spot decisions, above all by eliminating the need for the exercise of discretion in particular cases, and by making sure that law is as rule-like as possible, in a way that promotes predictability for parties and lawmakers alike.”³⁴³Cass R. Sunstein, Must Formalism be Defended Empirically?, 66 U. Chi. L. Rev. 636, 650 (1999).

To be sure, state-federal borrowing remains permissive rather than mandatory, and the state courts’ movement toward more formalist interpretive methodologies should not be overstated, even if it is bolstered by borrowing. But the promise of a more formalist interpretive methodology brought about by borrowing is not completely illusory either. Even accepting that statutory interpretation methodology may never achieve the level of predictability desired by its most formalist advocates,³⁴⁴E.g., Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 709 (2008); Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1885, 1893–94 (2008); Pohlman, supra note 9, at 553. borrowing bounds the discretion of state courts to some degree. When state courts scour the U.S. Reports for interpretive principles to apply, they will find some textualist-leaning principles and some purposivist-leaning principles and potentially even principles that conflict.³⁴⁵Cf. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395 (1950). Nonetheless, state court “legal practice would become more determinate if it were organized around shared interpretive permissions” (i.e., those tools applied by the Supreme Court), “rather than individualistic mandates.”³⁴⁶Re, supra note 256, at 1655; see Baldacci, supra note 45, at 1288 (“[D]ecisions of the Supreme Court act incrementally to elucidate and settle interpretive norms.”). Greater judicial constraint on questions of interpretation is aspirational, and an entirely determinate method of interpretation remains elusive, both in theory and in practice. But borrowing offers a promising picture of what a step toward more formalist interpretive methodologies might look like. While statutory interpretation is likely never to be relegated to judicial science, state-federal borrowing supports the notion that neither is state court statutory interpretation entirely within the realm of judicial art.

Conclusion

Commenting on “our judicial federalism,” Justice Sandra Day O’Connor, previously a state court jurist herself, once quipped that “the marriage between our state and federal courts, like any other marriage, requires each partner to respect the other, to make a special effort to get along together.”³⁴⁷Sandra Day O’Connor, Our Judicial Federalism, 35 Case W. Rsrv. L. Rev. 1, 12 (1984). State courts are the final expositors of state law—but they routinely show their respect for the federal courts through widespread borrowing of federal statutory interpretation methodology. Though there are reasons to pause before a state court uncritically follows federal interpretive law, on balance, state-federal borrowing furthers many of the goals that statutory interpretation theorists champion: predictability, efficiency, and simplicity, to name a few. State courts would do well to continue borrowing federal interpretive law—and even better if they, as this Article has encouraged, tell us why (or why not) a federal interpretive tool would also make a good state interpretive tool.