Interstitial Law

Before I go, I wanted to leave you with a few thoughts about these legal issues that go beyond the issue of DOMA and same-sex marriage.

As you may have gleaned, it turns out that marriage isn’t the only area where federal law draws upon or relies upon a pre-existing concept under state law. As has been mentioned in passing in my posts and in the comments, bankruptcy and tax law frequently draw upon state property law. (Before you tax and bankruptcy experts complain, yes, I know that federal law doesn’t always follow exactly what the state does, but in many cases the variations in state law are incorporated.) That’s also true in criminal law (where prior state convictions trigger increased punishments for later federal crimes), in federal enclaves (where the Assimilative Crimes Act incorporates the criminal law of the surrounding state), and much more. Henry Hart called this kind of federal law “interstitial.”

In some of areas of “interstitial” law, the choice of law problems are pretty well worked out. It’s pretty obvious to everybody that your prior state convictions are determined by the state where you were convicted, and so on. But in others, the choice-of-law problem is subject to the same kinds of ambiguities as marital law is, so my article provides some insight for resolving those areas too. (For example, my article shows why the Klaxon rule, which some courts have used, shouldn’t be extended to those areas.)

I think I have another normative point, too. Sometimes when interstitial law is invoked in a particular context, it strikes people as weird or counter-intuitive. Shouldn’t the scope of a federal right or the meaning of a federal law be uniform? I hope that our exploration of interstitial law convinces you that the answer is “not necessarily.” In many areas that are politically controversial, legally technical, or both, federal law has drawn much of its effect from state law.

At least two cases pending at the Supreme Court this term involve a dispute over interstitial law — the social security case of Astrue v. Capato (thanks, Nick, for calling it to my attention), and the habeas case of Gonzalez v. Thaler. In Capato, the federal government champions interstitial law — it wants state law to determine when a child conceived after his father’s death (by artificial insemination, of course) can inherit — in Gonzalez, it’s the habeas petitioner — he thinks state law makes his federal habeas petition timely. I’m not sure about the correct ultimate outcome in either case, but I think it’s important for the Court to see that there’s nothing anomalous or weird about relying on state law in such cases.

Thanks to Eugene and his co-conspirators for letting me crash here for the week, and thanks to the commenters, many of whom were insightful or informative. If you want to hear more from me, you can read my articles on SSRN (stay tuned for my blockbuster essay on the Jurisdiction and Venue Clarification Act), and you can follow me on Twitter (though it’s really not my medium). I’m sure I’ll see you all around the blogosphere again someday — maybe soon, maybe in a year or two.