# Salve Regina College v. Russell/Dissent Rehnquist

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Rehnquist
Chief Justice REHNQUIST, with whom Justice WHITE and Justice STEVENS join, dissenting.
I do not believe we need to delve into such abstractions as "deferential" review, on the one hand, as opposed to what the Court's opinion calls, at various places, "plenary," "independent," and "de novo " review, on the other, in order to decide this case. The critical language used by the Court of Appeals, and quoted in this Court's opinion, is this:
"In view of the customary appellate deference accorded to interpretations of state law made by federal judges of that state, Dennis v. Rhode Island Hospital Trust Nat'l Bank, 744 F.2d 893, 896 (1st Cir.1984); O'Rourke v. Eastern Air Lines Inc., 730 F.2d 842, 847 (2d Cir.1984), we hold that the district court's determination that the Rhode Island Supreme Court would apply standard contract principles is not reversible error." 890 F.2d 484, 489 (CA1 1989).
In order to determine the Court of Appeals' views as to "customary appellate deference," it seems only fair to refer to the page in Dennis v. Rhode Island Hospital Trust Nat. Bank, 744 F.2d 893 (1984), to which the court cites. There we find this language:
"[I]n a diversity case such as this one, involving a technical subject matter primarily of state concern, we are 'reluctant to interfere with a reasonable construction of state law made by a district judge, sitting in the state, who is familiar with that state's law and practices.' " Id., at 896 (citation omitted).
The court does not say that it always defers to a district court's conclusions of law. Rather, it states that it is reluctant to substitute its own view of state law for that of a judge "who is familiar with that state's law and practices." In this case, the court concluded that the opinion of a District Judge with 181/2 years of experience as a trial judge was entitled to some appellate deference.
This seems to me a rather sensible observation. A district court's insights are particularly valuable to an appellate court in a case such as this where the state law is unsettled. In such cases, the courts' task is to try to predict how the highest court of that State would decide the question. A judge attempting to predict how a state court would rule must use not only his legal reasoning skills, but also his experiences and perceptions of judicial behavior in that State. It therefore makes perfect sense for an appellate court judge with no local experience to accord special weight to a local judge's assessment of state court trends.
If we must choose among Justice Holmes' aphorisms to help decide this case, I would opt for his observation that "[t]he life of the law has not been logic: it has been experience." O. Holmes, The Common Law 1 (1881). And it does no harm to recall that the members of this Court have no monopoly on experience; judges of the courts of appeals and of the district courts surely possess it just as we do. That the experience of appellate judges should lead them to rely, in appropriate situations, on the experience of district judges who have practiced law in the State in which they sit before taking the bench seems quite natural.
For this very reason, this Court has traditionally given special consideration or "weight" to the district judge's perspective on local law. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 204, 76 S.Ct. 273, 277, 100 L.Ed. 199 (1956) ("Since the federal judge making those findings is from the Vermont bar, we give special weight to his statement of what the Vermont law is"); United States v. Hohri, 482 U.S. 64, 74, n. 6, 107 S.Ct. 2246, 2253, n. 6, 96 L.Ed.2d 51 (1987) ("[L]ocal federal district judges . . . are likely to be familiar with the applicable state law. . . . Indeed, a district judge's determination of a state-law question usually is reviewed with great deference"); Bishop v. Wood, 426 U.S. 341, 346, and n. 10, 96 S.Ct. 2074, 2078, and n. 10, 48 L.Ed.2d 684 (1976) ("[T]his Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion").
But the Court today decides that this intuitively sensible deference is available only to this Court, and not to the courts of appeals. It then proceeds to instruct the courts of appeals and the district courts on their respective functions in the federal judicial system, and how they should go about exercising them. Questions of law are questions of law, they are told, whether they be of state law or federal law, and must all be processed through an identical decisional mold.
I believe this analysis unduly compartmentalizes things which have up to now been left to common sense and good judgment. Federal courts of appeals perform a different role when they decide questions of state law than they do when they decide questions of federal law. In the former case, these courts are not sources of law but only reflections of the jurisprudence of the courts of a State. While in deciding novel federal questions, courts of appeals are likely to ponder the policy implications as well as the decisional law, only the latter need be considered in deciding questions of state law. To my mind, therefore, it not only violates no positive law but also is a sensible allocation of resources to recognize these differences by deferring to the views of the district court where such deference is felt warranted.
I think we run a serious risk that our reach will exceed our grasp when we attempt to impose a rigid logical framework on the courts of appeals in place of a less precise but tolerably well-functioning approach adopted by those courts. I agree with the Court that a court of appeals should not "abdicate" its obligation to decide questions of state law presented in a diversity case. But according weight to the conclusion of a particular district judge on the basis of his experience and special knowledge of state law, an appellate court does not "suspend [its] own thought processes." In re McLinn, 739 F.2d 1395, 1404 (CA9 1984) (Schroeder, J., dissenting). I think the Court of Appeals did no more than that here, and I therefore dissent from the reversal of its judgment.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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