Pullman Abstention in Preemption Cases

IntroductionNotwithstanding the U.S. Supreme Court's recent "New Federalism" jurisprudence, which has threatened to curtail the unlimited legislative power enjoyed by Congress in the post-New Deal era, concurrent regulation of broad swaths of the economy by both federal and state governments is certain to remain a permanent feature of our political order.1 Heightened regulatory activity at both levels of government in turn makes it increasingly likely that federal and state laws will conflict.* 2 As a general matter, when there is a conflict between a state law and a federal law, the federal law "preempts" the state law pursuant to the U.S. Constitution's Supremacy Clause.3Litigants seeking to reduce their regulatory burdens frequently try to use federal preemption of state law to their advantage.4 Regulated parties often file suit in federal court seeking declaratory or injunctive relief against a state statute, regulation, or other action on grounds that it is preempted by a federal law.5 Although the basis for federal jurisdiction over such matters has been contested, federal courts have long been willing to entertain these actions.6Federal courts' exercise of original jurisdiction over preemption challenges to state laws, however, may pose a subtle threat to important principles of judicial federalism.7 When federal courts are called upon to review a recently enacted state measure to determine if it is preempted by a federal law, potentially dispositive matters of state law may remain unclear.8 A state court may never have interpreted the chal- lenged law, and its precise meaning and scope might be ambiguous.9 In addition, doubts may remain as to whether the state law authorized the law.10Federal court resolution of such difficult matters of state law risks disturbing the delicate relationship between state and federal courts and perhaps even undermines the "reign" of law.* 11 Under our constitutional scheme of federalism and dual sovereignty, it is state, not federal, courts that serve as the "final expositors of state law."12 For this reason, federal courts must decide questions of state law only as they believe a state's highest court would decide them.13 Although federal judges are highly competent and usually able to accurately apply state law, in cases in which a question of state law is genuinely unclear, a federal judge can only speculate as to how a state judge would resolve the unclear state law issue.14The potential hazards of such a guessing game are significant.15 If a federal court strikes down a state measure on the basis of an erroneous interpretation of state law, it risks invalidating a policy that the state believes is legitimate.16 On the other hand, if the court upholds the state measure on the basis of a mistaken interpretation of state law, it must go on to decide the preemption claim, resulting in premature, and perhaps unnecessary, adjudication.17The abstention doctrine of Railroad Commission of Texas v. Pullman Co., first articulated by the Supreme Court in 1941, would seem to provide a federal judge with an alternative to this precarious method.18 Under the Pullman doctrine, a federal court may stay proceedings to permit a plaintiff to seek definitive resolution of unclear and potentially dispositive issues of state law in the state judiciary.19 If the state court's resolution is not favorable, a plaintiff may afterwards return to federal court and litigate remaining federal issues.20Judicial and academic authority, however, establishes that Pullman abstention is inappropriate in preemption cases.21 This Note takes issue with that now-dominant approach: it contends that "harmonious rela- tion[s] between state and federal authority" are preserved when the state judiciary resolves potentially dispositive ambiguities in state law before a federal court determines if a state measure is preempted by a federal law.22 Though the Pullman doctrine creates significant costs for litigants, who must "shuttle . …