Erie and federal criminal courts

Vanderbilt Law Review

Volumn 63, Issue 5, 2010, Pages 1243-1292

  Logan, Wayne A ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 79952849799     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (407)

1. See Robert A. Schapiro, Interjurisdictional Enforcement of Rights in a Post-Erie World, 46 WM. & MARY L. REV. 1399, 1400 (2005) (defining phenomenon as "the interpretation by a court operating within one political system of laws of another political system").
2. See Susan N. Herman, Beyond Parity: Section 1983 and State Courts, 54 BROOK. L. REV. 1057 (1989) (discussing role of state courts in adjudicating federal constitutional claims under 42 U.S.C. § 1983)
3. Robert A. Schapiro, Polyphonic Federalism: State Constitutions in Federal Courts, 87 CAL. L. REV. 1409 (1999) (noting federal judicial interpretations of state constitutional provisions).
4. See Tafflin v. Levitt, 493 U.S. 455, 458 (1990) ("[W]e have consistently held that state courts have inherent authority ... to adjudicate claims arising under the laws of the United States.")
5. Purvis v. Williams, 73 P.3d 740, 745 (Kan. 2003) (acknowledging state court authority to interpret federal statutes).
6. See, e.g., Arkansas v. EPA, 503 U.S. 91, 110-11 (1992) (interpreting Oklahoma water quality regulations); Chrisdiana v. Dep't. of Cmty. Health, 754 N.W.2d 533, 536 (Mich. Ct. App. 2008) (noting state court authority to interpret federal regulations).
7. See 28 U.S.C. § 1332 (2008) (establishing criteria for diversity jurisdiction). Recent data indicate that diversity of citizenship claims account for almost one-third of federal judicial caseloads.
8. See 13E Charles A. Wright et al., Federal Practice and Procedure § 3601, n.77 (3d ed. 2008).
9. 304 U.S. 64 (1938).
10. See, e.g., Heath v. Alabama, 474 U.S. 82, 93 (1985) (identifying "the power to create and enforce a criminal code" as a "foremost" and "exclusive" prerogative of sovereignty)
11. State v. Langlands, 583 S.E.2d 18, 20 n.4 (Ga. 2003) (observing that '"[w]hen a state defines conduct as criminal ... it is conveying in the clearest possible terms its view of public policy") (citation omitted). On the unique sovereignty issues attending the creation and enforcement of police power authority more generally
12. see Helen Stacy, Relational Sovereignty, 55 STAN. L. REV. 2029, 2032-33 (2003) (tracing history to Hobbes).
13. See Robert A. Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 HARV. L. REV. 193, 193 (1932) (discussing limited extraterritorial enforcement of penal claims); MODEL PENAL CODE § 1.03 explanatory note (2001) ("[I]t has long been a maxim of American jurisprudence that a state will not enforce the penal laws of another state."). For more on the history and rationales of the policy see Anthony J. Bellia, Jr., Congressional Power and State Court Jurisdiction, 94 GEO. L.J. 949, 959-63, 978-82 (2006).
14. See, e.g., United States v. Reid, 53 U.S. (12 How.) 361, 363 (1851) (holding that Rules of Decision Act warrants application of state civil but not criminal law in federal cases on the rationale that a contrary outcome would "place the criminal jurisprudence of one sovereignty under the control of another.").
15. See Charles Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. Rev. 545, 545 (1925) (discussing early era state court jurisdiction over federal criminal matters). Such jurisdiction was permissive, not mandatory, with Congress lacking power to force jurisdiction on a state court. Id. at 564;
16. see also Michael G. Collins, Article III Cases, State Court Duties, and the Madisonian Compromise, 1995 WIS. L. REV. 39, 45 (1995) (same).
17. See Judicial Conference of the U.S., Long Range Plan for the Federal Courts 27 (1995) (proposing that "federal prosecutions of local drug activity and some violent crime take place in state court, either by the U.S. Attorney's Office (by cross-designation) or the state's attorneys")
18. see also Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 1010-15 (1995) (discussing the prospect of concurrent jurisdiction)
19. Thomas M. Mengler, The Sad Refrain of Tough on Crime: Some Thoughts on Saving the Federal Judiciary from the Federalization of State Crime, 43 U. KAN. L. REV. 503, 535-40 (1995) (same).
20. 18 U.S.C. § 13(a) (2008).
21. See Puerto Rico v. Shell Oil Co., 302 U.S. 253, 266 (1937) (noting that prosecutions under the ACA "are not to enforce the laws of the state ⋯ but to enforce the federal law, the details of which ... are adopted by reference")
22. United States v. Kilz, 694 F.2d 628, 629 (9th Cir. 1982) (noting that the "assimilated state law, in effect, becomes a federal statute").
23. Vehicle-related laws are customarily deemed criminal by federal courts.
24. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 326 (2001) (Texas law requiring that auto seat belts be worn)
25. United States v. Simpson, 520 F.3d 531, 541 (6th Cir. 2008) (Tennessee law requiring that license plates be "clearly legible")
26. United States v. Tibbets, 396 F.3d 1132, 1138 (10th Cir. 2005) (Utah "mud flap" law)
27. United States v. Miller 146 F.3d 274, 278 (5th Cir. 1998) (Texas turn signal law)
28. see also Kim Forde-Marzui, Ruling Out the Rule of Law, 60 VAND. L. REV. 1497, 1514 & n.90 (2007) (noting that most states regard at least some traffic offenses as criminal in nature)
29. cf. 18 U.S.C. § 13(a) (incorporating malum prohibitum state and local criminal laws into the ACA)
30. United States v. Carlson, 714 F. Supp. 428, 433-37 (D. Haw. 1989) (deeming Hawaii's auto speeding law as criminal and thus subject to ACA incorporation). Also, it is not uncommon for traffic offenses to be explicitly classed as misdemeanors.
31. See, e.g., United States v. Fleming, 201 F. Supp. 2d 770, 775 (E.D. Mich. 2002) (Michigan law requiring display of registration plate on a vehicle, classified as misdemeanor).In addition, outside the auto context, more serious misconduct can serve as an initial basis for stop or arrest, resulting in federal criminal prosecution and judicial interpretation.
32. See, e.g., United States v. Struckman, 603 F.3d 731, 740-41 (9th Cir. 2010) (Oregon burglary law, a felony, and second degree criminal trespass, a misdemeanor)
33. United States v. Brown, 550 F.3d 724, 727 (8th Cir. 2008) (Missouri law prohibiting minors from carrying concealed weapon, a potential felony)
34. United States v. Jones, 432 F.3d 34, 41-42 (1st Cir. 2005) (Massachusetts law prohibiting possession of firearm without a license, a felony)
35. United States v. Goines, 604 F. Supp. 2d 533, 542-43 (E.D.N.Y. 2009) (New York law on resisting arrest, a misdemeanor)
36. United States v. Garner, 108 F. Supp. 2d 796, 800 (N.D. Ohio 2000) (Ohio law regarding failure to comply with lawful police order, a misdemeanor). Finally, it is not uncommon for low-level offenses to lack explicit classification, which results in their being deemed misdemeanors by default.
37. See, e.g., United States v. Shultz, No. 08-20020, 2008 WL 4756028, at *5 (E.D. Mich. 2008) (noting same under Michigan law).
38. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 786-87 (2006) (noting the several-fold greater number of state and local law enforcement officers compared to federal agents).
39. See, e.g., United States v. Eckhart, 569 F.3d 1263, 1271 (10th Cir. 2009) (noting that the Fourth Amendment focus is upon whether a "particular motorist violated 'any one of the multitude of applicable traffic and equipment regulations' of the jurisdiction") (citation omitted).
40. Of course, with constitutional challenges and habeas corpus sufficiency of the evidence claims, federal courts have long deferred to state court constructions of state statutes.
41. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355-56 (1983) (observing that when interpreting state statute in due process vagueness challenge federal court must heed any limiting constructions of state court)
42. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (noting that in due process challenges to state law that the Court "repeatedly has held that state courts are the ultimate expositors of state law and that we are bound by their constructions")
43. Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994) (Breyer, J.) (noting in federal habeas challenge to Massachusetts law that a federal court must defer to construction of Supreme Judicial Court). Here, on the other hand, federal courts must interpret and apply state (and local) laws in the first instance, very often in the absence of determinative state precedent. As discussed infra, the enterprise implicates distinct federalism questions concerning the allocation of state-federal judicial authority and separation of powers, much as in the Erie context.
44. See, e.g., United States v. Powers, 482 F.2d 941, 943 (8th Cir. 1973) ("Erie has no application whatsoever to federal criminal prosecutions.")
45. Robinson v. United States, 144 F.2d 392, 406 (6th Cir. 1941) ("It has not been decided that the holding in Erie R.R. Co. v. Tompkins is applicable in a criminal case.")
46. see also Peter Westen & Jeffery S. Lehman, Is There Life for Erie After the Death of Diversity, 78 MICH. L. REV. 311, 313 & n.9 (1980) (asserting that "Erie has no meaning for cases outside diversity jurisdiction," citing other sources in support).
47. For the sole scholarly recognition to date of Erie's relevance in the criminal law context see Kevin M. Clermont, Reverse-Erie, 82 NOTRE DAME L. REV. 1, 56 n.214 (2006) (citing Powers and briefly condemning typical disregard of Erie among criminal law courses and scholars). Professor Clermont proceeds to assert, however, that instances of federal application of state criminal laws are rare
48. see id., an assessment belied by the evidence presented here.
49. Felix Frankfurter & James M. Landis, The Business of the Supreme Court of the United States-A Study in the Federal Judicial System, 40 HARV. L. REV. 431, 465 (1927).
50. See Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 CAL. L. REV. 95, 141 (2009) (observing that "[i]n contemporary legal culture, federal court is the place where important matters are decided by important people for important people"). On the historic perceived preeminence of federal courts more.
51. generally see Judith Resnick, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 968-69 (2000).
52. See Dan T. Coenen, To Defer or Not to Defer: A Study of Federal Circuit Court Deference to District Court Rulings on State Law, 73 MINN. L. REV. 899, 901 (1989) (observing that federal diversity "alters results in real cases for real people").
53. See, e.g., Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 875 n.18 (2009) (noting that in 2005 the average federal sentence for drug trafficking was 81.7 months).
54. Stuntz, supra note 15, at 795. See also MATTHEW R. DUROSE ET AL., BUREAU OF JUSTICE Statistics, Contacts Between Police and the Public, 2005, at l (April 2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp05.pdf (noting that in 2005 roughly forty percent of all police-citizen contacts arose out of traffic stops).
55. See, e.g., United States v. Delfin-Colina, 464 F.3d 392, 394 (3d Cir. 2006) (noting Department of Homeland Security Overtime Program, which requires state and local police to zealously enforce traffic laws)
56. Phillip Shenon & Don Van Natta, Jr., U.S. Says Detainees May Be Tied to Highjackings, N.Y. TIMES, Nov. 1, 2001, at Al (discussing federal government's "spitting on the sidewalk" policy, under which "immigrants suspected of terrorist ties are apprehended for minor, unrelated charges")
57. Operations Pipeline and Convoy, U.S. DRUG ENFORCEMENT ADMINISTRATION, http://www.usdoj.gov/dea/programs/pipecon.htm Oast visited Sept. 2, 2010) (describing "Operation Pipeline," a federal drug interdiction effort depending on state and local enforcement support). The U.S. has also provided training and financial incentives to use traffic- related stops and arrests in the federal "war on drugs." See Course Catalog, NaTIi TRAINING Ctr., Fed. Motor Carrier Safety Admin., http://www.fmcsa.dot.gov/NTC/Course (last visited Sept. 1, 2010) (describing training offered by the Department of Transportation).
58. See, e.g., United States v. Goodwin, No. 98-6415, 2000 WL 64972, at *3 (6th Cir. 2000) (noting concern that " 'police officers are using the state law in this Circuit as carte blanche permission to stop and search ⋯ vehicles for drugs."") (citation omitted). As noted by Professor LaFave: In recent years more Fourth Amendment battles have been fought about police activities incident to a stop for a traffic infraction, what the courts call a "routine traffic stop," than in any other context. There is a reason why this is so, and it is not that police have taken an intense interest in such matters ⋯ Rather, the renewed interest of the police in traffic enforcement is attributable to a federally-sponsored initiative related to the "war on drugs." Wayne R. LaFave, 4 Search and Seizure: A Treatise on the Fourth Amendment § 9.3 (4th ed. 2009) (emphasis in original); see also id. (noting that "police have co-opted our traffic codes as a weapon to be used in the 'war on drugs").
59. See, e.g., United States v. Freeman, 209 F.3d 464, 467-69 (6th Cir. 2000) (Clay, J., concurring) (noting "troubling pattern or practice" of county sheriffs office use of such laws as "tools" to illegally stop vehicles in order to conduct searches, citing cases in support).
60. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 48 (1997) (averring that "[fjederal courts lack competence to rule definitively on the meaning of state legislation")
61. Michigan v. Long, 463 U.S. 1032, 1039-40 (1983) ('The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar.")
62. United States v. Eastland, 989 F.2d 760, 767 (5th Cir. 1993) (expressing concern over making "difficult interpretations of state statutory and constitutional law").
63. See also Kenneth J. Melilli, Exclusion of Evidence in Federal Prosecutions on the Basis of State Law, 22 GA. L. REV. 667, 738 (1988) (referring to "extremely onerous task of determining state law without any available state precedent").
64. See O'Sullivan v. Boerckel, 526 U.S. 838, 859 (1999) ("We ordinarily defer to a federal court of appeals' interpretation of state-law questions.")
65. Leavitt v. Jane L., 518 U.S. 137, 144 (1996) (per curiam) (noting that "we do not normally grant petitions for certiorari solely to review what purports to be an application of state law")
66. Bishop v. Wood, 426 U.S. 341, 346 (1976) ("[T]his Court has accepted the interpretation of state law in which the District Court and Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion.").
67. See Clermont, supra note 19, at 50 (discussing variable horizontal legal effects of .Erie).
68. See Wayne A. Logan, Horizontal Federalism in an Era of Criminal Justice Interconnectedness, 154 U. Pa. L. REV. 257, 258-60 (2005) (surveying variations in state and local criminal laws).
69. Clermont, supra note 19, at 50; see also BRUCE ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 272 n.4 (1977) (referring to Erie as a "star of the first magnitude in the legal universe").
70. See, e.g., United States v. Coleman, 162 F. Supp. 2d 582, 589 (N.D. Tex. 2001) (observing that "[f]orum shopping is not a myth"). As discussed later, in the many instances in which concurrent state-federal criminal jurisdiction exists-especially relative to gun and drug crimes-the federal system promises major prosecutorial benefits, including the possibility of harsher punishments and evidentiary and procedural rule advantages, compared to state courts. See infra notes 165-170 and accompanying text (discussing benefits of federal jurisdiction from perspective of prosecution).
71. See supra notes 1-6, 12-16 and accompanying text (discussing intergovernmental application of laws)
72. see also Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power, 100 Harv. L. Rev. 1485, 1537 (1987) ("It is unavoidable that states will apply federal law and federal courts will apply state law. A federal system is not one in which each 'sovereign' interprets only its own law.")
73. Jonathan Nash, The Uneasy Case for Transjurisdictional Adjudication, 94 Va. L. Rev. 1869, 1870 (2008) ("Federal courts are often called upon to decide cases that include matters of state law, while state courts often are called upon to decide cases that raise matters of both federal and state law.").
74. Clermont, supra note 19, at 48.
75. See U.S. CONST, art. Ill, § 2 (extending federal judicial jurisdiction to cases "between citizens of different states"); 28 U.S.C. § 1332(a) (2006) (allowing for federal diversity jurisdiction).
76. 41 U.S. 1 (1842).
77. See Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 74-75 (1937) (noting same).
78. See also Phillip B. Kurland, Mr. Justice Frankfurter, The Supreme Court and the Erie Doctrine in Diversity Cases, 67 YALE L.J. 187, 204 (1957) ('The obligations of the federal courts to determine and apply state law did not originate with the decision in the Erie case.").
79. See Edward Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958, at 60 (1992) (observing leeway enjoyed by federal courts in applying state law).
80. 304 U.S. 64 (1938).
81. See 19 WRIGHT ET AL., supra note 5, § 4507 (noting that Erie "broadened the contexts in which federal courts were bound to follow state law and, in general, commanded a new respect for the integrity of state law whenever applicable in federal courts").
82. Erie, 304 U.S. at 78.
83. Id. As often noted, Erie did not proscribe all federal common law-only federal "general" common law. Indeed, the Court stated as much on the day that Erie itself was decided.
84. See Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938) ("For whether the water of an interstate stream must be apportioned between the two States is a question of 'federal common law' upon which neither the statutes nor the decisions of either State can be conclusive."). There have always been and remain "enclaves" of federal common law.
85. See Jay Tidmarsh & Brian J. Murray, A Theory of Federal Common Law, 100 Nw. U. L. REV. 585, 594 (2006) (describing the traditional enclaves of federal common law).
86. See generally 19 WRIGHT ET AL., supra note 5, § 4507 (describing the methods used by federal courts in Erie cases).
87. 392 U.S. 1, 30-31 (1968).
88. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (recognizing established rule that a warrant and probable cause are not necessary for a search where the suspect gives voluntary consent).
89. See Arizona v. Gant, 129 S. Ct. 1710, 1714 (2009) (reaffirming police authority to search interior of autos and containers therein incident to arrest)
90. Chimel v. California, 395 U.S. 752, 763 (1969) (granting police authority to search the bodies of arrestees and the area "into which an arrestee might reach in order to grab a weapon or evidentiary items").
91. See, e.g., United States v. Lopez, 777 F.2d 543, 550-51 (10th Cir. 1985) ("The validity of the New Mexico police officers' search and seizure of Lopez's vehicle ... depends on whether they had probable cause under Federal Law.").
92. See, e.g., Ryan v. City of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995) (observing that reasonableness depends on state law because "there must be probable cause that a state crime has been committed.").
93. See infra notes 79-107 and accompanying text (discussing various applications of the exclusionary rule).
94. See 4 WRIGHT ET AL., supra note 5, § 1030 (discussing influence of Erie and the Rules Enabling Act).
95. See Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. REV. 651, 709 (1995) ('The Erie Court takes federal judges as its audience and instructs them to apply state, rather than federal, law in diversity cases. But it says almost nothing about how to ascertain state law."); Benjamin C. Glassman, Making Law in Federal Court, 41 GONZ. L. REV. 237, 263 (2006) ("Despite the long amount of time since the Supreme Court last spoke on ascertaining state law, the federal circuit courts of appeals have not developed a consensus approach to the sources of state law, nor have they truly demonstrated consistent command of the principles involved.").
96. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
97. West v. AT&T Co., 311 U.S. 223, 236 (1940).
98. Id. at 237.
99. Id. at 236-37;
100. see, e.g., Stoner v. N. Y. Life Ins. Co., 311 U.S. 464, 467 (1940) (noting that federal courts "must follow the decisions of intermediate state courts in the absence of convincing evidence that the highest court of the state would decide differently").
101. See Geri J. Yonover, Ascertaining State Law: The Continuing Erie Dilemma, 38 DEPAUL L. REV. 1, 29-40 (1988) (noting confusion among federal courts in this regard)
102. see also Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1317 (7th Cir. 1995) (noting difficulty presented in such situations).
103. King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 160-61 (1948).
104. Bernhardt v. Polygraphs Co. of Am., 350 U.S. 198, 205 (1956).
105. Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1054 (9th Cir. 2002).
106. Private Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002)
107. McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662-63 (3d Cir. 1980).
108. McKenna, 622 F.2d at 662-63.
109. Gravquick A/S v. Trimble Navigation Int'l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003); Gibbs-Alfano v. Burton, 281 F.3d 12, 19 (2d Cir. 2002).
110. Ind. Ins. Co. v. Pana Cmty. Unit Sch. Dist. No. 8, 314 F.3d 895, 903 (7th Cir. 2002).
111. Gibbs-Alfano, 281 F.3d at 19.
112. McKenna, 622 F.2d at 662.
113. See Glassman, supra note 52, at 292 (noting that the Supreme Court has not provided a "hierarchy of state-law sources or a decision tree for selecting among conflicting state precedents. Nor have the federal courts of appeal settled on any uniform method for doing so.").
114. See Bradford R. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. REV. 1459, 1466 (1997) (noting that "most federal courts attempt to predict how the state's highest court would decide the particular question and then apply the resulting rule of decision to the case at bar.")
115. Jonathan Nash, Resuscitating Deference to Lower Federal Court Judges' Interpretations of State Law, 77 S. CAL. L. REV. 975, 997 (2004) ("Federal courts must attempt to resolve the state law issues as they believe the relevant state high court would resolve them.").
116. See, e.g., Salve Regina Coll. v. Russell, 499 U.S. 225, 239 (1991) (characterizing enterprise as "reasoned divination")
117. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114,119 (2d Cir. 1994) ("Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.").
118. See, e.g., United States v. Gross, 550 F.3d 578, 583 (6th Cir. 2008) (Tennessee law); United States v. Miller, 146 F.3d 274, 278 (5th Cir. 1998) (Texas law)
119. United States v. Garner, 108 F. Supp. 2d 796, 800 (N.D. Ohio 2000) (Ohio law); United States v. Hartwell, 67 F. Supp. 2d 784, 789-91 (E.D. Mich. 1999) (Michigan law).
120. See, e.g., United States v. Lopez, 567 F.3d 755, 757 (6th Cir. 2009) (Kentucky law, relying on Huff v. Commonwealth, 406 S.W.2d 831 (Ky. 1966))
121. United States v. Lucas, 322 F. App'x. 326, 328 (4th Cir. 2009) (North Carolina law, relying on State v. Stone, 634 S.E.2d 244 (N.C. Ct. App. 2006))
122. United States v. Lopez-Valdez, 178 F.3d 282, 285 (5th Cir. 1999) (Texas law, relying on Vicknair v. State, 751 S.W.2d 180, 187 (Tex. Crim. App. 1986))
123. United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (Utah law, relying on State v. Bello, 871 P.2d 584, 586 (Utah Ct. App. 1994))
124. United States v. West, 615 F. Supp. 2d 957, 961 (S.D. Iowa 2009) (Iowalaw, relying on Hedges v. Conder, 166 N.W.2d 844, 853 (Iowa 1969))
125. United States v. Goines, 604 F. Supp. 2d 533, 543 (E.D.N.Y. 2009) (New York law, relying on People v. Felton, 581 N.E.2d 1344 (N.Y. 1991)).
126. As Third Circuit Judge Dolores Sloviter has noted in the context of civil diversity actions, "[e]ven when there is a state supreme court decision on point, the direction is not always crystal clear." Dolores Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. REV. 1671,1676 (1992).
127. See United States v. Simpson, 520 F.3d 531, 535 n.4 (6th Cir. 2008) (noting same).
128. See infra notes 219-222 and accompanying text.
129. See infra notes 223-243 and accompanying text. Today, with the exception of North Carolina, all states and the District of Columbia permit certification to some extent.
130. See Eric Eisenberg, Note, A Divine Comity: Certification (At Last) in North Carolina, 58 DUKE L.J. 69, 71 n. 13 (2008).
131. Abstention, it is worth noting, has been employed by federal courts in the context of section 1983 actions when asked to interpret state criminal laws allegedly raising First Amendment concern.
132. See, e.g., Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't, 533 F.3d 780 (9th Cir. 2008)
133. Lim v. Andrukiewicz, 360 F. Supp. 1077 (D.R.I. 1973).
134. See United States v. Burkley, 513 F.3d 1183, 1187 (10th Cir. 2008) (rejecting defense request to certify a question to the Oklahoma Supreme Court concerning auto turn signal law, invoking precedent disfavoring certification when the issue was adversely decided below)
135. United States v. Jones, 512 F. Supp. 2d 1193, 1194-95 (D. Kan. 2007) (denying certification on requirement that auto be "driven as nearly as practicable entirely within a single lane" and shall move only "with safety")
136. United States v. Martinez, No. 06-40080-01-RDR, 2006 U.S. Dist. LEXIS 73181, at *14-15 (D. Kan. Oct. 6, 2006) (denying certification on whether license plate must be decipherable at distance of fifty feet)
137. United States v. Ruiz-Lopez, No. 05-40060-01-JAR, 2006 U.S. Dist. LEXIS 30543, at *4 (D. Kan. Mar. 9, 2006) (denying certification of same question and whether a temporary tag can be placed in a car rear window).
138. Such efforts can involve some rather novel circumstances, such as when the Seventh Circuit in Chicago invoked Utah's Driver's Handbook, as had the trial court in the Eastern District of Wisconsin, to divine the meaning of a Utah statute invoked by Utah police.
139. See United States v. Powell, 929 F.2d 1190, 1194 (7th Cir. 1991) (stating that "[f]or want of a better guide to the application of the statute to the facts in this case, we defer to the Handbook, which presents the views of the administrative agency charged with enforcing Utah's traffic laws"). The issue in Powell was whether Utah law required that motorists use their turn signal lights when merging from an on-ramp onto another street. Id. at 1193. Fifteen years later, the Tenth Circuit found the same Utah statute not to be uncertain, eschewed reliance on the Utah Handbook, and concluded that the statute required that a signal be provided.
140. See United States v. Gregoire, 425 F.3d 872, 878 (10th Cir. 2005). See also, e.g., United States v. Gold, 77 F. Supp. 2d 936, 941-42 (S.D. Ind. 1999) (citing Powell and interpreting the Indiana Driver's Manual to interpret an unclear Indiana statute).
141. 314 F.3d 439 (9th Cir. 2002).
142. Id. at 443 (quoting CAL. VEH. CODE § 21658(a) (West 2009)).
143. Id. at 441-42.
144. Id. at 443.
145. Id. (citing People v. Skinner, 704 P.2d 752, 758 (Cal. 1985); People v. Butler, 146 Cal. Rptr. 856 (1978)).
146. Id. at 443-44. According to the California Supreme Court, "the inadvertent use of 'and' where the purpose or intent of a statute seems clearly to require 'or' is a familiar example of a drafting error which may properly be rectified by judicial construction."
147. Id. at 433 (quoting Skinner, 704. P.2d at 758).
148. Id. at 444 (citing United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)
149. United States v. Guevara-Martinez, No. 8:00CR47, 2000 WL 33593291 (D. Neb. May 26, 2000)
150. Crooks v. State, 710 So. 2d 1041 (Fla. Dist. Ct. App. 1998)
151. Rowe v. State, 769 A.2d 879 (Md. 2001)
152. State v. Caron, 534 A.2d 978 (Me. 1987)
153. State v. Tarvin, 972 S.W.2d 910 (Tex. App. 1998)). 86.
154. Id. at 446.
155. Id. The Ninth Circuit also rejected the government's alternate basis for the stop: that the vehicle's driver was under the influence of alcohol. Citing California precedent that such a stop is justified only upon proof of "pronounced weaving within a lane" for a "substantial distance," the court found that justification for this basis for the stop was similarly lacking.
156. See id. at 445-46 (citation omitted). For support of its view that pronounced weaving was lacking, the court cited decisions from Maine and Utah.
157. Id. at 446 (citations omitted). For support of its view that the defendants' vehicle weaving for 30-45 seconds did not satisfy the "substantial distance" standard, the court cited a Tenth Circuit decision. Id. (citing United States v. Lyons, 7 F.3d 973, rev'd on other grounds, United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995)).
158. 369 F.3d 1139 (10th Cir. 2004).
159. Id. at 1145 (citing OKLA. STAT. tit. 47, § 1113.A.2 (2010)).
160. Id. at 1141.
161. Id. at 1145.
162. Id. at 1146. The majority rejected the dissent's assertion that "the obligation of a federal court... to predict what the state's highest court would doQ applies only in 'civil diversity cases' and not in 'the criminal context.'"
163. Id. at 1145 n.5.
164. Id. at 1148 (citing State v. Hayes, 660 P.2d 1387 (Kan. Ct. App. 1983)).
165. Id. (citing Nelson v. State, 544 S.E.2d 189 (Ga. Ct. App. 2001)
166. People v. Miller, 611 N.E.2d 11 (111. App. Ct. 1993)).
167. Id at 1150.
168. 520 F.3d 531 (6th Cir. 2008).
169. Id. at 533 (citing TENN. CODE ANN. § 55-4-110(b) (2010)). The officer initially also noticed the vehicle's "extremely dark" window tinting. Tennessee, however, exempted out-of-state vehicles from its window tinting laws.
170. Id. (citing § 55-9-107).
171. Id.
172. The plate legibility law previously had been considered by the Middle District of Tennessee.
173. See id. at 535 (citing United States v. Walton, No. 1:03-00014, 2004 WL 3460842, at *4 (M.D. Tenn. Nov. 12, 2004) (denying motion to suppress when license plate frame obscured the word "Texas," the state of registration)).
174. Before addressing the question, the court noted that "a federal court must predict how the state's highest court would interpret the statute," and "[although more generally cited in the context of civil diversity cases, this rule is equally applicable in criminal matters."
175. Id. at 535-36.
176. Id. at 536 (citations omitted).
177. Id. at 535 (citation omitted).
178. Id. at 544-45.
179. 453 F.3d 958 (7th Cir. 2006).
180. Id. at 959.
181. Id. at 960 (citation omitted).
182. Id. at 960-61;
183. see also United States v. Davis, 692 F. Supp. 2d 594, 598-99 (E.D. Va. 2010) (invoking Virginia rules of statutory construction to invalidate stop based on law prohibiting pedestrians from stepping into a roadway)
184. cf. Giron v. City of Alexander, 693 F. Supp. 2d 904, 947 (E.D. Ark. 2010) (noting in federal civil rights action alleging racial profiling by local police invoking state laws to stop motorists that "[t]he Court starts by predicting how the Arkansas Supreme Court would construe these statutes").
185. 474 F.3d 1105 (8th Cir. 2007).
186. Id. at 1109-10 (emphasis added).
187. Id at 1110-11.
188. 418 F. Supp. 2d 737 (W.D. Pa. 2005).
189. Id. at 739 (citing 75 PA. CONS. Stat. § 3309(1) (2010)).
190. Id. at 741 (citing Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001)).
191. Id. at 742.
192. Id. (citing Gaddis v. Redford Twp., 364 F.3d 763 (6th Cir. 2004)
193. United States v. Ozbirn, 189 F.3d 1194 (10th Cir. 1999)
194. United States v. Palomino, 100 F.3d 446 (6th Cir. 1996)
195. United States v. Barahona, 990 F.2d 412 (8th Cir. 1993)
196. United States v. Harris, 928 F.2d 1113 (11th Cir. 1991)).
197. id. at 743.
198. 201 F. Supp. 2d 760 (E.D. Mich. 2002).
199. Id. at 765 (citing MICH. COMP. LAWS § 257.255(l)-2) (2010)).
200. Id. at 767.
201. Id.
202. Id. at 768-69.
203. 438 F.3d 1043 (10th Cir. 2006).
204. Id. at 1046 (citing KAN. STAT. ANN. § 8-133 (2010)).
205. Id. at 1045.
206. Id. at 1046.
207. Id. at 1048 (citing State v. Hayes, 660 P.2d 1387, 1388 (Kan. Ct. App. 1983) (relying on section 8-133 to uphold the stop of an out-of-state vehicle with a partially obscured license plate)).
208. Id. at 1049 (citing KAN. STAT. ANN. § 8-138a).
209. Id.
210. Id. (citing KAN. STAT. ANN. § 8-133; COLO. REV. STAT. § 42-3-202(2)(a) (2010)).
211. Id. at 1050 (citing People v. Redinger, 906 P.2d 81, 82-84 (Colo. 1995)). Indeed, according to a Kansas federal district court, Colorado's statutory authorization, and accompanying requirement that license plates be visible for a distance of 200 feet (versus 50 feet under Kansas law), was the sole basis for the decision of the Colorado Supreme Court in Redinger.
212. See United States v. Rubio-Sanchez, No. 05-40081-01-SAC, 2006 U.S. Dist. LEXIS 21230, at
213. 15 n.6 (D. Kan. Apr. 17, 2006).
214. Edgerton, 438 F.3d at 1050.
215. See David J. Stuckey, Comment, The Tenth Circuit's Obscure Vision: Losing Sight of the Importance of Clearly Visible License Plates, 46 WASHBURN L.J. 633, 650 (2007) ("Because both states' broader statutes require that license plates be illuminated and legible at a distance of fifty feet, Colorado's specific regulation authorizing a driver to place a temporary tag in a vehicle's rear window serves as a narrow exception to this general rule. The Kansas Legislature has not adopted this exception. Instead, Kansas issues temporary tags similar in design to permanent plates and intended for placement on the rear bracketed location of the vehicle.") Indeed, it is plausible, as a Kansas federal district court inferred, that the Kansas Legislature considered the benefits and detriments of allowing a temporary tag to be posted in vehicle rear windows and rejected the option.
216. See Rubio-Sanchez, 2006 U.S. Dist. LEXIS 21230, at *18 n.9 (D. Kan. Apr. 17, 2006).
217. See Stuckey, supra note 132, at 649.
218. See Rubio-Sanchez, 2006 U.S. Dist. LEXIS 21230, at *20 (asserting that the Edgerton court did not qualify as "an effort to interpret Kansas law").
219. See supra notes 56-57 and accompanying text
220. see also United States v. Escalante, 239 F.3d 678, 681 (5th Cir. 2001) (citing Erie precedent and stating that " '[w]e interpret the state statute the way we believe the state Supreme Court would' " and " '[i]f a state's highest court has not spoken to the issue, we look to the intermediate appellate courts for guidance'").
221. Compare, e.g., United States v. Valadez-Valadez, 525 F.3d 987, 993 (10th Cir. 2008) (rejecting without reason New Mexico Court of Appeals), and
222. United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007) (rejecting Kansas Court of Appeals in deference to Tenth Circuit precedent)
223. with United States v. Orduna-Martinez, 561 F.3d 1134, 1138 (10th Cir. 2009) (deferring to Kansas Court of Appeals)
224. United States v. Brown, 234 F. App'x. 838, 844-45 (10th Cir. 2007) (same), and United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (deferring to Utah Court of Appeals).
225. See, e.g., United States v. Martinez, 244 F. App'x. 187 (10th Cir. 2007) (Wyoming law on proper display of license plates)
226. United States v. King, 244 F.3d 736 (9th Cir. 2001) (Anchorage, Alaska ordinance prohibiting material obstruction "upon" front car windshields)
227. United States v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000) (Nevada law barring display of fictitious license plates); United States v. Freeman, 209 F.3d 464 (6th Cir. 2000) (Tennessee law requiring that a vehicle "shall be driven as nearly as practicable entirely within a single lane")
228. United States v. Smith, No. 2:08-CR-00306, 2009 WL 3165486 (D. Nev. Sept. 25, 2009) (City of North Las Vegas "open container" law).
229. See, e.g., United States v. Sanford, 476 F.3d 391 (6th Cir. 2007) (Tennessee law)
230. United States v. Mariscal, 285 F.3d 1127, 1132 (9th Cir. 2002) (Arizona law)
231. United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (Tennessee law)
232. United States v. Gonzales-Quinonez, 287 F. Supp. 2d 1032, 1036 (D. Ariz. 2003) (Arizona law).
233. It bears mention that the predictive approach also dominates analysis in civil rights actions under section 1983, including false arrest claims based on the Fourth Amendment.
234. See, e.g., Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002) (using predictive approach with Utah shoplifting statute)
235. Bowden v. Town of Speedway, 539 F. Supp. 2d 1092, 1104 (S.D. Ind. 2008) (using predictive approach with Indiana resisting arrest statute)
236. see also Center for Bio-ethical Reform, Inc. v. Los Angeles Cnty. Sherriff Dep't, 533 F.3d 780, 794 (9th Cir. 2008) (First Amendment challenge predicting how California court would construe statute barring school disruptions)
237. cf. United States v. Cobb, 975 F.2d 152, 156 (5th Cir. 1992) (noting with respect to Texas law permitting warrantless searches of auto salvage dealerships that "[t]he district court was obligated to interpret the Texas statute as a Texas court would have interpreted it").
238. See, e.g., Jonathan Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 TEX. L. REV. 339 (2005) (discussing major variability in statutory interpretation methods used by federal courts).
239. See, e.g., United States v. Burks, 290 F. App'x 488, 492 (3d Cir. 2008) (Ambro, J., dissenting) (observing that the majority "add[ed] a requirement of its own making to Pennsylvania law").
240. See, e.g., United States v. Vazquez, 555 F.3d 923, 928 (10th Cir. 2009)
241. United States v. Hernandez-Rivas, 513 F.3d 753, 759 (7th Cir. 2008)
242. United States v. Alvarado, 430 F.3d 1305, 1038 (10th Cir 2005)
243. United States v. Randall, 62 F. App'x 96 (6th Cir. 2003)
244. United States v. Lopez, No. 3:06cr283, 2007 WL 1851058 at *2 (D. Conn. June 26, 2007)
245. United States v. Ruiz-Lopez, No. 05-40060-01-JAR, 2006 WL 1128702, at *3 (D. Kan. Apr. 26, 2006).
246. See, e.g., United States v. Simpson, 520 F.3d 531, 536 (6th Cir. 2008) (relying on the Tenth Circuit's DeGasso decision interpreting Oklahoma law when interpreting Tennessee law)
247. United States v. Colin, 314 F.3d 439, 444 (9th Cir. 2002) (relying on Tenth Circuit's Gregory decision interpreting Nebraska law when interpreting California law).
248. See, e.g., United States v. Gross, 550 F.3d 578, 583-84 (6th Cir. 2008) (noting varied interpretations of law requiring that vehicles remain in their lane "as nearly as practical")
249. United States v. Delgado-Hernandez, 283 F. App'x 493, 498 (9th Cir. 2008) (noting variations on whether "fog line" laws permit stops based on momentary drifting from traffic \&ne)
250. cf. People v. Mott, 906 N.E.2d 159, 166 (111. Ct. App. 2009) (noting three approaches adopted by states relative to laws prohibiting visual obstructions placed on rearview mirrors);
251. State v. Wolfer, 780 N.W.2d 650, 652-53 (N.D. 2010) (discussing "varying standards and interpretations" among jurisdictions regarding laws requiring that vehicles be driven as nearly as "practicable" within a single lane).
252. As others have noted, to characterize the federal decision as "wrong" presupposes the existence of clear authoritative law to the contrary, which of course is not in existence at the time of the initial federal decision.
253. See, e.g., Schapiro, supra note 1, at 1427-28
254. See Jonathan Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 CORNELL L. REV. 1672, 1674 & n.3 (2003) (noting high error rates of federal decisions and the extended delays occurring before such errors are corrected)
255. Sloviter, supra note 72, at 1677-79 (noting frequency of federal mistaken predictions of state civil law).
256. See, e.g., State v. Marx, 215 P.3d 601, 674 (Kan. 2009) (rejecting Tenth Circuit constructions of Kansas law requiring that vehicles be driven "as nearly as practicable" within a lane). With apparent false modesty, the Kansas Supreme Court began its analysis by stating that "although great respect is accorded the decisions of the federal jurists in the Tenth Circuit, the ultimate responsibility for interpreting the laws of the State of Kansas falls squarely on our shoulders. Accordingly, we humbly strike out on our own to intuit the most logical meaning to ascribe to [the] legislative language."
257. Id. at 610. Federal court divinations, however, do not always prove to be off-base; a state high court may ultimately agree.
258. See, e.g., People v. Saunders, 136 P.3d 859, 863 (Cal. 2006) (agreeing with result reached in United States v. Ramstad, 308 F.3d 1139 (10th Cir. 2002), that California law requires passenger vehicles to display both license plates).
259. See, e.g., United States v. Pulido-Vasquez, 311 F. App'x 140, 143 (10th Cir. 2009) (deferring to prior "fog line" Circuit precedent based on "the Kansas statute or similar laws of other states")
260. United States v. Morije-Contreras, 245 F. App'x 738, 742 (10th Cir. 2007) (deferring to its prior opinion in United States v. Ledesma, 447 F.3d 1307 (10th Cir. 2006), which "reviewed Tenth Circuit law on the general subject of 'obscured' license tags that were not 'clearly visible'")
261. United States v. Gastellum, 927 F. Supp. 2d 1386, 1393 (D. Colo. 1996) (stating that United States v. Gregory, 79 F.3d 973 (10th Cir. 1996) (Utah law), "controls my analysis").
262. See United States v. City of Las Cruces, 289 F.3d 1170, 1186 (10th Cir. 2002) ('The reluctance to create common law is a core feature of federal criminal court jurisprudence. Federal courts should only fashion common law in a 'few and restricted' circumstances. Moreover, federal common law exists only when 'state law cannot be used.'") (citations omitted).
263. See Brian Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 COLUM. L. REV. 1211, 1239-40 (2004) ("No matter how clever, original, or even persuasive a federal court's interpretation of a state law is, it is not authoritative.")
264. see also Althouse, supra note 34, at 1512 (noting that "unauthoritative federal court decisions of state law may be even more problematic than state court opinions of federal law" because "state courts never review any federal court decisions of state law to correct erroneous interpretations").
265. See Robert Schapiro, Toward a Theory of Interactive Federalism, 91 IOWAL. REV. 243, 310 (2005) ("[A] federal court ruling on the state claim risks impairing the uniformity of state law .... Eventually, the state's highest court will issue an interpretation, which will bind both state and federal courts, but a case presenting the opportunity for such definitive clarification may not arise for some time. In the mean time, uncertainty will result.").
266. See supra note 29 and accompanying text.
267. Cf. Kan. Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir. 1999) ("[T]here is nothing in the Erie doctrine that requires federal courts to sacrifice the finality of their judgments because state courts subsequently interpret state law differently than the federal courts have done.")
268. DeWeerth v. Baldinger, 38 F.3d 1266, 1273-74 (2d Cir. 1994) ('The very nature of diversity jurisdiction leaves open the possibility that a state court will subsequently disagree with a federal court's interpretation of state law. However, this aspect of our dual justice system does not mean that all diversity judgments are subject to revision once a state court later addresses the litigated issues.")-
269. State law is antecedent to a federal issue when the "existence, application or implementation of a federal right turns on resolution of a logically antecedent issue of state law." Herbert Wechsler, The Appellate Jurisdiction of the Supreme Court: Reflections on the Law and Logistics of Direct Review, 34 WASH. & Lee L. REV. 1043, 1054 (1977)
270. see also Laura S. Fitzgerald, Suspecting the States: Supreme Court Review of State-Court State-Law Judgments, 101 MICH. L. REV. 80 (2002) (surveying the rationales and justifications for Supreme Court review of state court state law-related decisions).
271. See Virginia v. Moore, 553 U.S. 164, 164-65 (2008).
272. Marcia L. McCormick, When Worlds Collide: Federal Construction of State Institutional Competence, 9 U. PA. J. CONST. L. 1167, 1179 (2007) (citing Henry Paul Monaghan, Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases, 103 COLUM. L. REV. 1919, 1925-26 (2003)).
273. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005); Bishop v. Wood, 426 U.S. 341 (1976).
274. See Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-41 (1981) ('The vesting of jurisdiction in the federal courts does not in and of itself give rise to authority to formulate federal common law ⋯ .")
275. Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 HARV. L. REV. 881, 922-23 (1986) (noting that Erie, "whether based on constitution or statute, clearly rejects the proposition that a court can make federal common law merely because it has jurisdiction").
276. See supra notes 12-13 and accompanying text.
277. See United States v. White, 145 F. App'x 786, 789 (3d Cir. 2005)
278. United States v. Collazo, 117 F.3d 793, 795 (5th Cir. 1997)
279. United States v. Dotwon, 34 F.3d 882, 883 (9th Cir. 1994)
280. United States v. Sain, 795 F.2d 888, 891 (10th Cir. 1986)
281. United States v. Kilz, 694 F.2d 628, 629 (9th Cir. 1982).
282. see United States v. Smith, 965 F. Supp. 756, 761-62 (E.D. Va. 1997) (adopting contrary view based on inferences drawn from Fourth Circuit opinions).
283. Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N.Y.U. L. Rev. 383, 422 (1964)
284. see also Althouse, supra note 34, at 1504 (noting Supreme Court's policy of " 'mutual integrit-that federal courts should not expound state law and state courts should not expound federal law")
285. Phillip B. Kurland, Toward a Co-Operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481, 487 (1960) ("I start with the principle that the federal courts are the primary experts on National Law just as the State courts are the final expositors of the laws of their respective jurisdictions.").
286. See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) ("Under our federal system, the States possess primary authority for defining and enforcing the criminal law.")
287. Powell v. Texas, 392 U.S. 514, 536 (1968) (observing that the criminal law "has always been thought to be the province of the States")
288. see also Santiago Legarre, The Historical Background of the Police Power, 9 U. PA. J. CONST. L. 745, 747-48 (2006) (observing that "American federalism cannot be fully understood without reference to the police power, for ⋯ 'police power' was the name Americans chose in order to designate the whole range of legislative power not delegated to the federal government and retained by the states").
289. See Larry W. Yackle, Reclaiming the Federal Courts 130 (1994) ("Powerful state interests are reflected in substantive criminal law .... The federal courts should not upset the making and enforcement of criminal law policy.")
290. cf. Arizona v. Manypenny, 451 U.S. 232, 243 (1981) ("Because the regulation of crime is preeminently a matter for the States, we have identified 'a strong judicial policy against federal interference with state criminal proceedings.'...A State's interest in enforcing its criminal laws merits comparable judicial respect when pursued in the federal courts.") (citation omitted)
291. Younger v. Harris, 401 U.S. 37 (1971) (noting that special intergovernmental concerns arise with criminal prosecutions, obliging federal courts to refrain from interfering with state prosecutions)
292. United States v. Reid, 53 U.S. (12 How.) 361, 363 (1851) (holding that the Rules of Decision Act warrants application of state civil but not criminal law in federal cases because contrary outcome would "place the criminal jurisprudence of one sovereignty under the control of another.").
293. See Hanna v. Plumer, 380 U.S. 460, 468 (1965) (describing the twin aims of Erie as being the "discouragement of forum-shopping and avoidance of inequitable administration of the laws").
294. See generally Adam N. Steinman, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. Rev. 245, 274-82 (2008) (surveying procedural variations in state and federal courts contributing to parties' strategic filing and removal decisions). Criminal defendants, of course, not only typically wish to avoid federal prosecution but also lack the capacity to seek remand to state courts. More than any party to a civil suit, as Justice Blackmun once put it in a habeas case, "[t]he criminal defendant is an involuntary litigant." Allen v. McCurry, 449 U.S. 90, 116 (1980) (Blackmun, J., dissenting).
295. See, e.g., Michael M. O'Hear, National Uniformity /Local Uniformity: Reconsidering the Use of Departures to Reduce Federal-State Sentencing Disparities, 87 IOWA L. REV. 721, 732-35 (2002)
296. see also Lisa L. Miller & James Eisenstein, The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion, 30 LAW & SOC. INQUIRY 239, 244 (2005) (noting that "only about 5% of all federal criminal cases involved federal statutes with no local or state counterpart").
297. See Stephen P. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643 (1997)
298. Michael O'Hear, Federalism and Drug Control Policy, 57 VAND. L. REV. 783 (2004).
299. See James W. Diehm, New Federalism and Constitutional Criminal Procedure: Are We Repeating the Mistakes of the Past?, 55 MD. L. REV. 223, 247-53 (1996).
300. See Clymer, supra note 167, at 700-05.
301. See id. at 674-75.
302. For instance, it has been argued that certification constitutes an abdication of federal jurisdiction.
303. See, e.g., Nash, supra note 146, at 1676 ("Certification is inconsistent with the statutory jurisdiction conferred upon the federal courts by Congress to the extent that it improperly allows state courts to hear cases that fall within the statutory grant."). Unlike diversity cases, here no statutory or other duty compels federal courts to resolve the state or local substantive law issues.
304. See, e.g., Rebecca A. Cochran, Federal Court Certification of Questions of State Law to State Courts: A Theoretical and Empirical Study, 29 J. LEGIS. 157, 217 (2003) (discussing data from Ohio indicating almost twelve month delay between certification and state court resolution).
305. Yonover, supra note 214, at 333-34.
306. See supra note 77 and accompanying text. By contrast, federal habeas litigation, taking place after the state criminal conviction has become final, presents less in the way of such time pressure, likely accounting for the greater use of certification in that context.
307. See supra note 226 and accompanying text.
308. See, e.g., Amanda Frost, Certifying Questions to Congress, 101 Nw. U. L. REV. 1, 2 (2007) (arguing in favor of federal court certification of issues to Congress for determination)
309. Gregory E. Maggs, Reducing the Costs of Statutory Ambiguity: Alternative Approaches and the Federal Courts Study Committee, 29 HARV. J. ON LEGIS. 123, 173 (1992) (same).
310. U.S. CONST, art. I, § 10, cl. 1 (providing that "[n]o State shall⋯pass any⋯ex post facto Law⋯")
311. see also Collins v. Youngblood, 497 U.S. 37, 38 (1990) (noting with respect to ex post facto prohibitions that "[legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts").
312. U.S. CONST, art. I, § 10, cl. 1 (providing that "[n]o State shall⋯pass any Bill of Attainder⋯")
313. see also Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977) (noting that bill of attainder bar prohibits state and federal governments from passing "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.").
314. See 2 NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTES AND Statutory Construction § 41:3 (7th ed. 2010) (citing and discussing examples).
315. See supra notes 14-16 and accompanying text.
316. See supra notes 165-172 and accompanying text.
317. See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (upholding warrantless arrest for a fine-only offense and refusing to tie Fourth Amendment reasonableness to seriousness of offense)
318. Whren v. United States, 517 U.S. 806 (1996) (holding that officers' subjective motivations for stop, even if pretextual, are constitutionally irrelevant).
319. For classic treatments of the issue, see, for example, KENNETH CULP DAVIS, Discretionary Justice: a Preliminary Inquiry 176-80 (1969)
320. Richard S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. CHI. L. REV. 246 (1980)
321. James Vorenberg, Decent Restraint of Prosecutorial Power, 94 HARV. L. REV. 1521 (1981). For a decidedly less classic but hopefully still helpful discussion, focusing in particular on the power to decline prosecution
322. see Wayne A. Logan, Comment, A Proposed Check on the Charging Discretion of Wisconsin Prosecutors, 1990 WIS. L. REV. 1695 (1990).
323. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 871-72 (2009) ("Despite the arguments of scholars for greater judicial supervision, federal judges continue to rubber stamp cooperation, charging, and plea decisions.").
324. See, e.g., Beale, supra note 11, at 1017;
325. Clymer, supra note 167, at 717;
326. Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893 (2000).
327. See U.S. ATTORNEY'S MANUAL § 9-2.031 (2009), available at http://www.justice.gov/usao/eousa/foia-reading-room/usam/title9/2mcrm.htm#9-2. 031. The policy, which arose out of Petite v. United States, 361 U.S. 529 (1960), "precludes the initiation or continuation of a federal prosecution, following a prior state ⋯ prosecution based on substantially the same act(s) or transaction(s)." U.S. ATTORNEY'S MANUAL § 9-2.031.
328. U.S. ATTORNEY'S MANUAL § 9-27.000.
329. On efforts by Main Justice to centralize prosecutorial decision-making more generally see Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE L.J. 1420, 1440-43 (2008).
330. See supra note 194 and accompanying text. The electoral accountability of state and local prosecutors, it bears mention, raises an array of interesting political economy issues. The fines generated by successful prosecution of malum prohibitum offenses, whatever the negative political fallout associated with aggressive enforcement, has positive budgetary effect for local governments. If the offenses result in more serious, felony-level convictions, based on evidence secured by police, then the state will experience negative budgetary effects as a result of costs associated with imprisonment (paid by the state). In the latter instance, as discussed, state officials could well be predisposed to favor "going federal" (if concurrent jurisdiction exists).
331. For a rare recognition and quite helpful overview of the phenomenon, see Ronald F. Wright, Federal or State? Sorting as a Sentencing Choice, 21 CR1M. JUST. 16 (2006).
332. Cf. Rachel E. Barkow, Federalism and Criminal Law: What the Feds Can Learn from the States, 109 MICH. L. REV. (forthcoming 2010) (surveying how state and local governments allocate prosecutorial responsibilities to gain insight into preferable approaches in instances of concurrent state-federal jurisdiction).
333. See Barbara S. Jones et al., Panel, The Prosecutor's Role in Light of Expanding Federal Criminal Jurisdiction, 26 FORDHAM URB. L.J. 657, 675 (1999) (comments of David Sklansky) (observing that a chief benefit of guidelines is that "they can spur self-consciousness in the people who develop them").
334. See supra notes 26-27 and accompanying text.
335. Cf. Logan, supra note 175, at 173 (discussing unjustified tendency of judiciary to impute conscious deliberative quality to criminal laws enacted by political bodies).
336. See, e.g., Simons, supra note 249, at 934 (regarding the federal Principles of Prosecution as "so vague as to be meaningless").
337. See Barkow, supra note 248, at 912 (noting same and offering reasons for the aversion)
338. Ronald F. Wright, Sentencing Commissions as Provocateurs of Prosecutorial Self-Regulation, 105 COLUM. L. REV. 1010, 1019-22 (2005) (noting same).
339. See, e.g., Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. PA. L. REV. 959, 1006-07 (2009) (noting sparse federal compliance with federal death penalty charging decision policy)
340. O'Hear, supra note 166, at 734 (noting widespread violations of "Federal Principles")
341. Ellen Podgor, Department of Justice Guidelines: Balancing "Discretionary Justice," 13 CORNELL J.L. &Pub. Pol'Y 167 (2004) (noting broad array of unenforced guidelines, including the Petite Policy)
342. Daniel Richman, Institutional Coordination and Sentencing Reform, 84 TEX. L. REV. 2055, 2068-69 (2006) (surveying variety of failed attempts at federal guideline promulgation and enforcement).
343. See Simons, supra note 249, at 932-33 (describing volume and other federal prosecutorial incentives).
344. See, e.g., O'Hear, supra note 166, at 732-33 (describing several federal prosecutorial initiatives targeting gun and drug crimes, based on arrests by state and local authorities).
345. Clark, supra note 68, at 1505.
346. Just such a concern inspired a spirited dissent from Judge Baldock in United States v. DeGasso, 369 F.3d 1139 (10th Cir. 2004), who wrote that "[d]ue process does not permit a court to simply 'predict the outcome,' lest courts construe a vague or ambiguous penal statute in favor of the Government. Rather, reasonable notice to the accused that his or her conduct is unlawful is the benchmark."
347. Id. at 1155 (Baldock, J., dissenting). This case is not about 'predicting" how Oklahoma's highest court might interpret [the statute]. This case is about due process of law which requires fair warning-warning Defendants did not receive."
348. Id. at 1156.
349. The appeal of the predictive approach, turning in significant part on the unavoidable need to identify what state law "is," should not obscure the paradox created relative to Erie itself. Despite Erie's disdain for the notion that law is a "brooding omnipresence" to be discovered, rather than that articulated by courts and legislatures, the predictive approach requires federal courts to "find" state law. See Glassman, supra note 52, at 244 (noting that "this very undertaking presumes that the state's law is out there, somewhere, and that it is discoverable").
350. See Ted Sampsell-Jones, Reviving Saucier: Prospective Interpretations of Criminal Laws, 14 GEO. MASON L. REV. 725, 755 (2007) (noting that "an impermissibly vague statute is struck down, while an impermissibly ambiguous statute is read narrowly"). Despite its major practical significance, the distinction between vagueness and ambiguity itself remains troublingly unclear. See id. (citing authorities).
351. Of course, it certainly can be argued that the threshold determination of whether a law is substantively unclear is itself an act of judicial construction.
352. See Farnsworth, supra note 232, at 99 ("We are confronted with a familiar gap-an incompleteness-that the law can't close: it can give instructions about what to do with ambiguity, but judges are on their own in deciding whether ambiguity is present in the first place.").
353. See Fid. Union Trust Co. v. Field, 311 U.S. 169, 177-78 (1940) ("An intermediate state court in declaring and applying the state law is acting as an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question.").
354. See supra note 73 and accompanying text.
355. See supra note 136 and accompanying text.
356. See, e.g., Portland Gen. Elec. Co. v. Bureau of Labor Indus., 859 P.2d 1143, 1146 (Or. 1993)
357. State ex rel. Kalal Circuit Court, 681 N.W.2d 110, 122-26 (Wis. 2004).
358. See FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 3-5 (2009) (discussing interpretive authority inhering in delegations).
359. See Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEO. L.J. 341, 349 (2010) (surveying common practice of state legislative codification of interpretive rules and methods and noting that with codification 'legislatures seek to instruct judges on how legislatures operate and to govern the sources and methods of statutory interpretation"). This is not to say of course that canons, especially in the absence of legislative specification, do not potentially conflict with the traditional conceptualization of the judiciary as the faithful agent of legislative will. On this tension more generally see Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109 (2010).
360. See, e.g., United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (noting that in Utah "criminal statutes are not to be construed strictly, but rather according to their fair import 'to promote justice and to effect the objects of the law and general purposes ⋯.'") (citing UTAH CODE ANN. § 76-1-106 (2010))
361. see also CAL. PENAL CODE § 4 (West 2008) ("The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.")
362. N.Y. PENAL LAW § 5.00 (McKinney 2008) ("The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of law."). On the more general modern-day modification of the lenity rule
363. see Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 901-06 (2004) (noting that a majority of U.S. jurisdictions have either abolished or narrowed the rule's application).
364. In Nevada, for instance, the legislature has directed that state traffic laws be interpreted in a manner "to minimize the differences between the traffic laws of the State of Nevada and those of other states." NEV. Rev. STAT. § 484A.005(2) (2009).
365. The directive was invoked by the Ninth Circuit in United States v. Delgado-Hernandez, 283 F. App'x 493, 499 (9th Cir. 2008), which cited Maryland law to uphold a stop based on an alleged violation of Nevada's "fog line" law. Id.
366. Cf. Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. Rev. 769, 777-81 (2008) (discussing influence of statutory interpretation methods on substantive outcomes).
367. See, e.g., Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 F.3d 641, 644 (7th Cir. 2002) ("When state law on a question is unclear ⋯ the best guess is that the state's highest court, should it ever be presented with the issues, will line up with a majority of the states.").
368. See, e.g., United States v. DeGasso, 369 F.3d 1139, 1146 (10th Cir. 2004) (interpreting Oklahoma law).
369. In the civil context, the precedential effect of federal circuit decisions remains a matter of dispute. Compare, e.g., Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004) (condemning trial court's failure to give precedential effect to prior Seventh Circuit decision on state law) and
370. Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 283 (2d Cir. 1981) (stating that panel owed binding deference to the Sixth Circuit's prediction of Tennessee law)
371. with In re E. &S. Dists. Asbestos Lit., 772 F. Supp. 1380, 1409 (E.D.N.Y. 1991) (stating that "a decision by the Second Circuit is not binding on this court in determining a question of state law"). For more on the current uncertainty see Colin Wrabley, Contrasting Approaches to Applying Court of Appeals' Law Holdings and Erie State Law Predictions, 3 SETON Hall Circuit Rev. i, 4-16 (2006).
372. See William N. Eskridge, Jr. &Philip P. Frickey, The Supreme Court 1993 Term, 108 HARV. L. Rev. 26, 66 (1994) ("[An interpretive regime is] a system of background norms and conventions against which the Court will read statutes. An interpretive regime tells lower court judges, agencies, and citizens how strings of words in statutes will be read, what presumptions will be entertained as to a statutes's [sic] scope and meaning, and what auxiliary materials might be consulted to resolve ambiguities.").
373. See Lawrence Solan, Law, Language, and Lenity, 40 WM. &MARY L. REV. 57, 122-28 (1998)(discussing same and concluding that the "bottom line is that courts sometimes do not know what to do when asked to interpret a statute. Lenity best promotes deeply held values when that situation arises.").
374. See generally Jerome Hall, Nulla Poena Sine Lege, 47 YALE L.J. 165 (1937).
375. See Clark, supra note 68, at 1535-44. In the Erie literature, the static approach stands in contrast to the future-oriented predictive approach whereby a court "attempts to forecast the development of state law by asking what rule of decision the state's highest court is likely to adopt in the future." Id. at 1497. The latter approach, which bears greater relevance in the civil common law context, affords federal courts latitude to predict state adoption of as-yet unrecognized causes of action and defenses and the overturning of state law precedent. Id. at 1502-16.
376. S. 111. Riverboat Casino Cruises, Inc. v. Triangle Insulation &Sheet Metal Co., 302 F.3d 667, 676 (7th Cir. 2002)
377. see also Combs v. Int'l Ins. Co., 354 F.3d 568, 577 (6th Cir. 2004) ("When given a choice between an interpretation of state law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path.")
378. Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002) ("P]f we are torn between two competing yet sensible interpretations of Pennsylvania law ⋯ we should opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of Pennsylvania decides differently.").
379. Glassman, supra note 52, at 286.
380. Clark, supra note 68, at 1541-42.
381. See McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.) ("[FJair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.")
382. see also George P. Fletcher, Truth in Codification, 31 U.C. DAVIS L. Rev. 745, 752 (1998) ("Citizens need to know what is prohibited ⋯ in order to avoid the risk of liability.").
383. Note, The New Rule of Lenity, 119 HARV. L. Rev. 2420, 2421 (2006). For evidence of the venerable pedigree of this view see, for example, The Adventure, 1 F. Cas. 202, 204 (C.C.D. Va. 1812) (No. 93) (Marshall, C.J., sitting as Circuit Justice) (noting that in such instances "the act to be punished is in itself indifferent, and is to be rendered culpable only by the positive law. In such a case, to enlarge the meaning of the word[s] would be ⋯ to punish, not by the authority of the legislature, but by the judge").
384. See Thomas W. Merrill, The Disposing Power of the Legislature, 119 COLUM. L. REV. 452, 456-61 (2010) (discussing structural and political reasons supporting legislative exclusivity in criminal law-making)
385. Robinson, supra note 209, at 340-41 (noting modern preference for legislative, not judicial, prescriptions). For these reasons, adoption of a dynamic default rule, such as encouraging the judiciary to resolve uncertainty by seeking to maximize "enactable legislative preferences," including by a legislature other than that enacting the criminal law in question, as recently advocated by Professor Elhauge, is inapt.
386. See ElNER ELHAUGE, STATUTORY Default Rules: How to Interpret Unclear Legislation 9 (2008) (noting that "an approach of maximizing political satisfaction often dictates adopting statutory default rules that do not reflect the enactors' most likely meaning or preferences").
387. See Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 833-35, 842-46 (2008) (discussing various manifestations and power sources of judicial and legislative authority to prescribe federal judicial rules).
388. Cf. Elhauge, supra note 289, at 235 (asserting that default rules of construction would decrease 'legal uncertainty and ⋯ control discretionary choices by lower courts").
389. The approach, it warrants mention, holds greater practical appeal than the alternate option of Congress limiting federal court jurisdiction over such laws, as has been suggested by Judge Dolores Sloviter in the context of federal diversity jurisdiction.
390. See Sloviter, supra note 72, at 1687. If nothing else, the enormous political appeal of tough federal anti-crime initiatives, especially vis-a-vis drugs, in which state and local laws and police play a central role, will discourage congressional interest in such a jurisdictional limit.
391. Cf. Michael O'Neil, Understanding Federal Prosecutorial Declinations: An Empirical Analysis of Predictive Factors, 41 Am. Crim. L. Rev. 1439, 1441 (2004) (discussing rare instance of Congress acting to require adoption of prosecutorial guidelines under the PROTECT Act, intended to limit use of downward sentence departures).
392. See supra notes 26-27 and accompanying text.
393. See supra note 18 and accompanying text.
394. See David A. Sklansky &Stephen C. Yeazell, Comparative Law without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa, 94 GEO. L.J. 683, 684 (2006) ("Civil litigation and criminal litigation in the contemporary United States occupy separate worlds.")
395. see also Brandon L. Garrett, Aggregation in Criminal Law, 95 CAL. L. Rev. 383, 385 (2007) (discussing distinctiveness of civil and criminal adjudication models).
396. See David Frisch, Contractual Choice of Law and the Prudential Foundations of Appellate Review, 56 VAND. L. REV. 57, 107 (2003) (noting early federal judicial reluctance in the face of unclear state law).
397. See supra note 20 and accompanying text. The lack of resistance stands in marked contrast to earlier times. Beginning in the Prohibition Era and throughout much of the mid-twentieth century, concern over the perceived indignity of requiring federal courts to adjudicate petty offenses prompted efforts to limit federal jurisdiction.
398. See generally George Doub &Lionel Kestenbaum, Federal Magistrates for the Trial of Petty Offenses: Need And Constitutionality, 107 U. PA. L. REV. 443 (1959)
399. Mary C. Warner, Note, The Trials and Tribulations of Petty Offenses in the Federal Courts, 79 N.Y.U. L. REV. 2417 (2004).
400. See supra notes 40-44 and accompanying text.
401. Thomas E. Plank, The Erie Doctrine and Bankruptcy, 79 NOTRE DAME L. REV. 633, 633 (2004).
402. Paul L. Caron, The Role of State Court Decisions in Federal Tax Litigation: Bosch, Erie, and Beyond, 71 OR. L. REV. 781, 781 (1992).
403. Curtis A. Bradley et al., Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 869 (2007)
404. cf. Kathryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 NW. U. L. REV. 997 (2007) (urging application of Erie principles in federal administrative law context based on federal courts' solicitation of and deference to agency views). The broadening use of Erie summons to mind Judge Friendly long-ago observation that Erie's sole application in federal diversity cases is an "oft-encountered heresy." Friendly, supra note 161, at 408 n.122.
405. See Admin. Office of U.S. Courts, Judicial Business of the United States Courts, 2009 ANNUAL REPORT 12 (Mar. 2010), available at http://www.uscourts.gov/ Statistics/JudicialBusiness/JudicialBusiness.aspx?doc=/uscourts/Statistics/ JudicialBusiness/2009/JudicialBusinesp dfversion.pdf (noting that in 2009 federal criminal case filings reached their highest level since 1932, the year before Prohibition was discontinued)
406. see also Susan H. Herman, Federal Criminal Litigation in 20/20 Vision, 13 LEWIS &Clark L. Rev. 461, 462 (2009) (noting that the number of federal criminal prosecutions in 2008 was about four and one half times that of 1968 and three and a half times that of 1988).
407. See U.S. SENTENCING COMM'N, 2006 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS fig.A (2006) available at http://www.ussc.gov/annrpt/2006/sbtoc06.htm (noting that 35.5 percent of federal criminal docket concerns narcotics and 11.7 percent firearms offenses).