Abstract: Today, low-level state and local criminal provisions figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to seize individuals has been the subject of extensive commentary, this Article provides the first discussion of how federal courts actually interpret and apply the laws. In doing so, it reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Railroad Co. v. Tompkins in criminal cases. As this Article explains, as has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions. Federal outcomes result not in civil liability but rather deprivations of physical liberty and have significant implications for federalism and separation of powers, affecting the historic police power authority of state and local governments. The Article, in short, examines the impact of the Erie megadoctrine in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come. INTRODUCTION 1244 I. FEDERAL APPLICATION OF STATE AND LOCAL LAW 1251 II. ERIE IN FEDERAL CRIMINAL COURTS 1253 A. Erie's Analytics 1253 B. in Criminal Prosecutions 1255 1. Federal Application of Determinate Laws 1255 2. Federal Application of Indeterminate Laws 1256 a. Federal Deference 1257 b. Federal Dismissiveness 1261 3. Summary 1265 III. ERIE'S RELEVANCE 1267 A. as a Non Sequitur? 1268 B. Erie's Doctrinal Parallels 1273 1. Institutional Competence and Democratic Accountability 1273 2. Federalism and Separation of Powers 1276 IV. A PROPOSAL 1277 A. Judicial Avoidance 1278 B. Executive Avoidance 1283 C. Judicial Interpretive Tools 1285 CONCLUSION 1291 INTRODUCTION State and federal courts have long engaged in intersystemic adjudication,1 interpreting and applying the constitutions,2 laws,3 and regulations4 of one another's governments. Perhaps the best known instance in the civil litigation realm occurs with federal diversity jurisdiction,5 where, as a result of Railroad Co. v. Tompkins,6 federal courts resolve federal civil claims on the basis of state substantive laws. With criminal laws, however, the phenomenon has been and remains less apparent. This is in significant part due to the principle that such laws embody sovereign normative preferences,7 susceptible to neither enforcement8 nor jurisprudential control9 by other governments. Nevertheless, some degree of interaction has always been in evidence. Indeed, during the nation's formative years, states at times exercised concurrent jurisdiction over federal criminal matters,10 and while federal jurisdiction is exclusive today, the prospect of concurrent criminal jurisdiction persists. …
Publication Year: 2010
Publication Date: 2010-10-01
Language: en
Type: article
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