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National Federalism' best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress--through its decisions to give states prominent roles in federal schemes and so to ensure the states' continuing relevance in the statutory era. As a result, many of the most significant state sovereign acts now occur through state implementation of federal statutory law, but we have no law to effectuate this account of state authority. This is National Federalism: nationalism and federalism, simultaneous and in tension--and generated entirely by federal statutes. Unlike traditional federalism, it is neither a constant presence nor an entitlement: rather, it is a feature of federal statutory design. But nor does it have the usual trappings of nationalism, because it incorporates experimentation, variety and state historical expertise-the classic 'federalism' values--into national law. State sovereignty remains, even if law does not yet recognize it as such. States pass state legislation, appoint new state officials and hear state-law cases in state courts, all as part of their work to implement federal statutory law, but in many ways autonomous from it. Yet, instead of having Chevron-like doctrines that give implementing states more policymaking discretion; or jurisdictional rules that keep more of these cases in state courts; or choice-of-law regimes requiring that state standards of review and state rules of administrative procedure should apply to the state laws enacted by states legislatures that shape the local implementation of federal law in ways unique to each state--instead of all of that, we have a doctrinal muddle and a Court that does not even see these questions as federalism questions in the first place. This essay develops the account of Congress as our primary source of federalism, and re-situates nationalism within that account. It then assembles a list of fifteen unresolved doctrinal questions that reveal the complexity and importance of federalism's modern statutory domain., INTRODUCTION There is a simultaneity of nationalist and state-centered impulses in almost every aspect of modern American federal law. But we do not have the theories to recognize it, or [...]

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress's decisions in delegate implementation duties to states should affect how ambiguous statutes should be interpreted. For theories of federalism, state implementation raises a different question, namely, whether this 'intrastatutory federalism'--an informal federalism that comes from the inside of federal statutes--is something that doctrine should protect. The prevailing functional and sovereignty accounts of federalism seem less relevant for a federalism that comes at the grace of Congress; this federalism belongs to the domain of statutory interpretation. This Essay argues that state implementation of federal law plays many different roles, and that those differences should affect both how statutes are interpreted and how they are conceived from a federalism perspective. Sometimes state implementation effectuates traditional federalism values like experimentation, but at other times it seems to serve more nationalizing functions, like statutory entrenchment and even federal law encroachment. This variety poses challenges for legislation doctrine, because the prevailing canons of interpretation are not designed to capture such differences, and it illustrates that the broad category of cooperative federalism is more nuanced than commonly acknowledged., ESSAY CONTENTS INTRODUCTION I. FEDERALISM AND FEDERAL LEGISLATION THEORY A. Preliminary Matters: Is Intrastatutory Federalism 'Federalism' at All? B. The Absence of Intrastatutory Federalism from the Doctrines and Theories of [...]

Do the Erie Doctrine and its 'reverse-Erie' mirror require state and federal courts to apply one another's statutory interpretation methodologies when they interpret one another's statures? Surprisingly, the courts have no consistent answer to this question--even though state and federal courts constantly interpret one another's laws. What's more, exploring this application of Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation 'law,' individual judicial philosophy, or something in between? This Article argues that many federal courts are getting the Erie question wrong--or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less 'lawlike' than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as 'law' and does not give them precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes--a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions., INTRODUCTION I. INDETERMINACY IN STATUTORY INTERPRETATION AND FEDERALISM'S ARCHITECTURE OF CONCURRENT JURISDICTION A. The Unresolved Legal Status of Federal Interpretive Methodology 1. Methodology as 'Rules of Thumb' 2. Methodology' as [...]

This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the 'death of textualism,' the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis--the practice of giving precedential effect to judicial statements about methodology--is generally absent from federal statutory interpretation, but appears to be a common feature of some states' statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being 'dead,' what emerges from these state cases is a surprisingly strong consensus methodology--what this Article terms 'modified textualism'--a theory that shares textualism's core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself--whether it is 'law' or something 'less'--remains entirely unresolved., ARTICLE CONTENTS INTRODUCTION I. A BRIEF OVERVIEW OF THE MAINSTREAM DEBATES A. Textualism Versus Purposivism B. Textualism's Limited Success and the Problem of Interpretive Indeterminacy C. Proposals for Interpretive Determinacy [...]