796 WILLIAM & MARY LAW REVIEW [Vol. 54:753
To be clear, this discussion does not include overarching theories
of constitutional interpretation, like originalism or living consti-
tutionalism. Those obviously have not been accorded the force of
law. Similarly, in the context of statutory interpretation, my
argument is not primarily about whether textualism and purpos-
ivism are law. My central argument is about the individual
doctrines—the canons—that courts use to implement whatever
theory that they choose.
157
In the constitutional law context, the
relevant comparisons are doctrines like the tiers of scrutiny.
158
Lehman Bros. Bank, FSB v. State Bank Comm’r, 937 A.2d 95, 107-08 (Del. 2007) (same);
Banner Life Ins. Co. v. Mark Wallace Dixson Irrevocable Trust, 206 P.3d 481, 495 (Idaho
2009) (explaining the application of the tiers of scrutiny); In re Warner, 21 So. 3d 218, 246 (La.
2009) (applying the First Amendment content-based regulation test); State v. Bussmann, 741
N.W.2d 79, 94 (Minn. 2007) (same); Turner v. Roman Catholic Diocese, 987 A.2d 960, 973-74
(Vt. 2009) (involving the three-pronged Establishment Clause test).
157. The reason my argument does not entirely exclude the overarching theories is that,
in the Erie context, it seems to me that courts should apply the overarching interpretive
method of the home jurisdiction in their efforts to predict how the state’s high court would
rule regardless of whether they would conceive of the methodology itself as common law. See
supra note 121 and accompanying text. It is an interesting question for another day why
individual interpretive rules seem more amenable to lawlike treatment than overarching
methodologies.
158. Stare decisis offers another example, although one less settled. With respect to the
intersection of stare decisis and Erie, we see theories of precedent treated as rules of decision
in the context of Louisiana’s civil law system. As the nation’s only civil code state, Louisiana
does not use stare decisis but rather employs the statute-based civil law methodology. The
Fifth Circuit has held that Erie compels federal courts to use Louisiana’s unique approach to
precedent in diversity cases involving Louisiana law. See, e.g., Gen. Elec. Capital Corp. v. Se.
Health Care, Inc., 950 F.2d 944, 950 (5th Cir. 1991); see also Dorf, supra note 121, at 713
(noting the same example). And in reverse, Louisiana courts seem to apply “regular” stare
decisis to federal law questions. See Coutee v. Global Marine Drilling Co., 924 So. 2d 112, 117
(La. 2006) (“Generally, state courts exercising concurrent maritime jurisdiction are bound to
apply substantive federal maritime statutory law and to follow United States Supreme Court
maritime jurisprudence.”). But a debate does remain on the federal side with respect to the
legal status of stare decisis. Scholars have disputed whether Congress could abrogate stare
decisis by statute. See Amy Coney Barrett, Procedural Common Law, 94
VA. L. REV. 813, 828-
29 (2008) (describing this debate); supra note 10 and accompanying text. Compare, e.g., John
Harrison, Essay, The Power of Congress over the Rules of Precedent, 50 D
UKE L.J. 503, 505
(2000) (arguing that stare decisis is usually a rule of federal common law), and Michael Stokes
Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect
of Roe and Casey?, 109 Y
ALE L.J. 1535 (2000) (arguing that stare decisis is “a form of ‘common
law’ followed by courts as a matter of judicial policy” and “may be displaced by an act of
Congress”), with F
ALLON ET AL., supra note 122, at 591-92 (arguing that “the doctrine’s
entrenched status and its normative desirability” support the notion that it is constitutionally
authorized, and the fact that it goes “to the heart of the judicial power to determine the
constitutional law of the United States” points to the conclusion that it is not constitutional
common law that Congress can override).