Originally uploaded at SSRN.


Federal courts of appeals often grant special deference to district court rulings on matters of state law. This practice is important. It is also ill-conceived. This Article explores this "rule of deference." Section I considers the roots and reach of the rule. Together with the Appendices to this Article, it seeks to detail for practitioners, commentators, and judges the way the rule operates in the courts. The remaining sections of this Article consider the wisdom of the rule of deference. Section II argues that the rule lacks a sound rationale and Section III urges that the rule has bad effects not yet considered by the courts. Section IV suggests that the rule of deference offends Erie R.R. Co. v. Tompkins by producing second-rate appellate review of state law rulings in federal court. Section V observes that there may be unspoken-and unacceptable-reasons why judges have retained the rule. A conflict among the circuits now exists on whether there should be any rule of deference. Another intercircuit conflict exists about how much deference the court should afford if the rule applies. Intracircuit disagreements concerning the rule of deference also have emerged. Most significantly, in almost every circuit, different panels have articulated different formulations of the measure of deference applicable under the rule. In this setting, circuit court reevaluation of the rule is both desirable and predictable. Supreme Court consideration also may wait in the wings. The thesis of this Article is that the federal courts should abandon the rule of deference. The discussion that follows seeks to show why.