Intercircuit Deference in Diversity Cases: Respect for Expertise or Judical Ventriloquism?

St. John's Law Review Volume 57, Fall 1982, Number 1 Article 3 Intercircuit Deference in Diversity Cases: Respect for Expertise or Judical Ventriloquism? Bruce D. Davis Jr. Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Davis, Bruce D. Jr. (1982) "Intercircuit Deference in Diversity Cases: Respect for Expertise or Judical Ventriloquism?," St. John's Law Review: Vol. 57 : No. 1 , Article 3. Available at: https://scholarship.law.stjohns.edu/lawreview/vol57/iss1/3 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . NOTES INTERCIRCUIT DEFERENCE IN DIVERSITY CASES: RESPECT FOR EXPERTISE OR JUDICIAL VENTRILOQUISM?t The stranger from afar, unacquaintedwith the local ways, permits himself to be guided by the best evidence available, the directions or the counsel of those who dwell upon the spot. -Benjamin N. Cardozott Federal courts often have recognized that under certain circumstances, another legal authority is better equipped to render a decision based upon the applicable law. In these instances, courts have employed a policy of judicial deference which allows a court to adopt the decisions of an authority more knowledgeable in the particular area of the law at issue.1 The Supreme Court and the circuit courts of appeals, for example, have deferred to a district court's interpretation of local state law for the state in which the district court sits.2 Similarly, when one circuit court of appeals has t Subsequent to the decision in Erie R.R. v. Tompkins, 304 U.S. 64 (1938), which required a federal court to apply state law in diversity cases, id. at 78; see infra note 15 and accompanying text, Judge Frank, of the Second Circuit Court of Appeals, characterized the role of the federal courts as that of a "ventriloquist's dummy to the courts of [a] particular state," Richardson v. Commissioner, 126 F.2d 562, 567 (2d Cir. 1942). it Hawks v. Hamill, 288 U.S. 52, 60 (1933) (Cardozo, J.) (espousing the need for federal courts in diversity cases to follow local state law). ' See, e.g., Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). Deference is defined as a "yielding of judgment or preference out of respect for the position, wish, or known opinion of another." WEnsTER'S THIRD NEw INTERNATIONAL DICTIONARY 591 (P. Gove ed. 1976). A court that defers is necessarily influenced by the other court's position or opinion and because deference is motivated by respect, that position or opinion is viewed as a higher authority on the particular matter. It is submitted, therefore, that judicial deference can be summarized as a yielding of judgment to a higher authority. 2 See City of Burbank v. Nevada, 658 F.2d 708, 710 (9th Cir. 1981); Tomlin v. Boeing Co., 650 F.2d 1065, 1068 (9th Cir. 1981); Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980); Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 347 (9th Cir. 1974); see also Bernhardt v. Polygraphic Co., 350 U.S. 198, 204-05 (1956) (interpretation of 1982] INTERCIRCUIT DEFERENCE interpreted a federal statute, a sister circuit may defer to that interpretation.3 Several circuits, recognized as experts in a particular area of law, may also function as authoritative sources to which a sister circuit can turn for guidance.4 Additionally, federal courts local law by local district court is given special weight); Steele v. General Mills, Inc., 329 U.S. 433, 439 (1947) (district court's interpretation of purely local law left undisturbed); Bazzano v. Rockwell Int'l Corp., 579 F.2d 465, 469 (8th Cir. 1978) (special weight given to a trial judge's interpretation of state law in diversity cases); Eason v. Weaver, 557 F.2d 1202, 1206 (5th Cir. 1977) (substantial weight afforded to the district court's assessment of local law); Symons v. Mueller Co., 493 F.2d 972, 977 (10th Cir. 1974) (district court's interpretation is presumed to be correct). 3 The Eighth Circuit Court of Appeals has been a frequent proponent of according deference to the decisions of sister circuits. E.g., National Indep. Meat Packers Ass'n v. EPA, 566 F.2d 41, 43 (8th Cir. 1977); Cosentino v. Local 28, Org. of Masters, 268 F.2d 648, 652 (8th Cir. 1959). In expounding the need for judicial deference to the statutory interpretations of sister circuits, the Eighth Circuit stated: Although we are not bound by another circuit's decision, we adhere to the policy that a sister circuit's reasoned decision deserves great weight and precedential value. As an appellate court, we strive to maintain uniformity in the law among the circuits, wherever reasoned analysis will allow, thus avoiding unnecessary burdens on the Supreme Court's docket. Unless our. . . courts of appeals are thus willing to promote a cohesive network of national law, needless division and confusion will encourage further splintering and the formation of otherwise unnecessary additional tiers in the framework of our national court system. Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir. 1979), cert. denied, 446 U.S. 919 (1980). Furthermore, the Eighth Circuit has commented that "on an unsettled question of federal law, while a decision by another court of appeals is not compulsively binding upon us, we will, in the interest of judicial uniformity, accept it as persuasive and follow it, unless we are clearly convinced that it is wrong." Homan v. United States, 279 F.2d 767, 773 (8th Cir.), cert. denied, 364 U.S. 866 (1960). Such a policy of deference is not, however, limited to the Eighth Circuit. See, e.g., Federal Life Ins. Co. v. United States, 527 F.2d 1096, 1098-99 (7th Cir. 1975) (decisions of other circuits should be followed unless incorrect); Warren Bros. Co. v. Cardi Corp., 471 F.2d 1304, 1307-08 (1st Cir. 1973) (application of the reasoning of other circuits on the question presented); Andrew v. Bendix Corp., 452 F.2d 961, 963 (6th Cir. 1971) (decision of a sister circuit used for guidance), cert. denied, 406 U.S. 920 (1972). 4 A circuit attains a reputation as an "expert" in a particular area of the law through its "wide and varied experience in the application of the rules of law governing a certain general subject." H. BLACK, HANDBOOK ON THE LAW OF JUDICIAL PRECEDENTS § 24, at 82 (1912). For example, the Second Circuit is typically viewed as an expert in securities law, while the District of Columbia Circuit has achieved expert status in communications laws. Note, Securing Uniformity in NationalLaw: A Proposalfor National Stare Decisis in the Courts of Appeals, 87 YALE L.J. 1219, 1239 n.138 (1978) [hereinafter cited as Note, Securing Uniformity in National Law]. Even if a circuit court of appeals cannot be deemed "expert," certain circuits are nevertheless perceived to be of (...truncated)