The Surrey Centre for Law and Philosophy invites you to a seminar to be delivered by Nina Varsava (University of Wisconsin). The event will be a hybrid event (attendance possible via Zoom).

Register here.

Derivative Recognition and Intersystemic Interpretation

H.L.A. Hart distinguished between two kinds of judicial recognition of the law, which he called original and derivative recognition. In a case of original recognition, a court interprets and applies its own jurisdiction’s law. In a derivative recognition case, the court adjudicates a dispute arising under another jurisdiction’s law. In this paper, I explore how the difference between the two types of recognition affects the interpretive approach that a law-applying court ought to take. I focus on statutory interpretation and take the American federal-state context as a central example of intersystemic adjudication. I argue, against a dominant strand of American legal scholarship, that a court can discharge its duty to apply a foreign jurisdiction’s law without following that jurisdiction’s interpretive norms. I find that methods of statutory interpretation such as textualism and intentionalism, as we know them from judicial practice in the United States, are not part of a system’s rule of recognition. This separation of interpretive methodology and the rule of recognition makes it possible, although not guaranteed, that various interpretive methodologies will be capable of identifying the law and no single one will be binding on judges. I argue that, given the character and range of the interpretive methodologies in American jurisdictions, and the determinants of statutory law in those jurisdictions, we have good reason to believe that multiple interpretive methodologies are capable of identifying the law and that a methodology’s capability in this regard will depend on epistemic and institutional features of the interpreters—variables that can differ considerably between law-supplying and law-applying courts. Further, because a court applying its own law must be guided by its system’s rule of recognition, the interpretive approach of an original recognition court is beholden to that rule in a way that will necessarily shape its approach. A court applying the very same law but exercising derivative recognition is not subject to the same constraint, making interpretive approaches available to the derivative recognition court that are unavailable to the original one. Although I focus on the American federal-state adjudicative context, the analytical framework that I develop is not context-specific, but rather provides the tools necessary for assessing judicial duties in other intersystemic settings as well.

About the Speaker:

Nina Varsava’s research focuses on procedure, courts, judicial administration, ethics, and jurisprudence. She is especially interested in issues of precedent, interpretation, and intersystemic adjudication. She teaches courses on civil procedure, professional responsibility, and jurisprudence.

Varsava’s recent research has appeared in the Notre Dame Law Review, the Yale Journal of Law and Humanities, and the NYU Law Review Online, among others. Her scholarship has been covered by media outlets such as the The New York Times and the American Bar Association Journal, and has been cited by both federal and state courts.

Following law school, Varsava served as a Judicial Law Clerk for the Supreme Court of Colorado.

Paper will be circulated prior. Pre-reading optional.