Welcome to my first scholarship roundup for State Court Report. These roundups will cover notable recent legal scholarship on state courts, state constitutions, and the broader field of state public law. Please feel free to send new work or suggestions — I’m always on the lookout for more to read and share in these areas.
A scholarship roundup on state public law may sound unlikely. After all, the legal academy has long neglected state public law. Federal public law seems to get all the love. If you went to law school, compare the amount of time you spent studying the U.S. Constitution, the U.S. Supreme Court, the president, and Congress with the time you spent on those same kinds of institutions in the states. Popular discussion is much the same: most people know we have a national Constitution and are familiar with the U.S. Supreme Court, for example, but surveys suggest that most people are unaware of their state’s constitution.
Yet state governments shape people’s day-to-day lives more than our national institutions. State courts decide far more cases. That was true even before the Supreme Court kicked major issues like abortion and gerrymandering to the states. And — a theme of today’s roundup and the work it previews — the states offer much to study, because state public law is not just junior varsity federal public law. States’ constitutions and institutions offer rich distinctions that warrant focused consideration.
It is a welcome development, then, that recent months have been an active time for state public law scholarship.
Let’s start with the latest on state constitutional rights. This is the subset of state public law that’s gotten the most attention in the past, but today’s work is fresh and new. Earlier generations of “new judicial federalism” writing, while pathbreaking and important, tended to focus on how state courts should engage with federal constitutional doctrine on cognate provisions. This recent work casts a wider net.
First up, Anthony Sanders of the Institute for Justice has written Baby Ninth Amendments, an exploration of the oft-ignored unenumerated rights clauses that appear in two-thirds of state constitutions. As the title suggests, these clauses are offshoots of the federal Ninth Amendment. But the book brings the state provisions to the fore in a thought-provoking, accessible way. Sanders urges that the state-level Ninth Amendments were intended to protect a wide array of individual rights that state constitutions do not list. His analysis would allow greater redress for economic rights, property rights, and other forms of personal liberty.
Other recent work examines state constitutional rights with no federal analogue. As readers may know from prior State Court Report coverage, climate change has spurred state-level litigation around the nation. In a new book chapter, Widener Law Commonwealth’s John Dernbach compares the six state constitutions that affirmatively promise a quality environment, highlighting similarities and differences in their text and judicial enforcement. His colleague Quinn Yeargain’s article “Decarbonizing Constitutions” argues that achieving decarbonization requires more than environmental rights. Drawing on the model of 19th-century natural resources provisions in state constitutions, Yeargain proposes amendments that would pair decarbonization requirements with state institutions to enforce them.
In another new rights piece, the University of Kentucky’s Josh Douglas penned an essay on youth voting rights, with an extensive appendix. Douglas posits that the explicit, affirmative voting rights in state constitutional text can “protect young voters against a continual assault on their right to vote.”
As these examples show, state constitutions confer a wide array of rights. Indeed, rights abundance is one of the ways that state constitutions stand out. In a forthcoming article, Columbia Law School’s Jessica Bulman-Pozen and I analyze that distinctive rights tradition and what it means for state constitutional adjudication. In addition to protecting plentiful rights (see our section on “Rights, Rights, Rights”), state constitutions also temper rights with community obligations, confer positive rights as well as negative liberties, and are fundamentally committed to democracy in ways that sound in rights as well as structure. Given this different vision of rights and the very different state institutions that implement them, we propose a state-centered adjudicative framework — “democratic proportionality” — instead of federal mimicry, and we explore its application in a range of contexts, from property to voting to abortion rights.
Other new pieces delve into state institutions. In a forthcoming article, University of Florida’s Jonathan Marshfield describes the state-level separation of powers as rooted in accountability and public monitoring. Whereas we typically think of the federal separation of powers as a mechanism for interbranch competition, Marshfield writes, state constitutional drafters had something else in mind. Drawing on history, text, and practice, he argues that state constitutions separate power to facilitate public oversight of government — suggesting that, where text is unclear, courts should prioritize arrangements that voters can more easily track.
Other valuable new work tackles institutional questions on specific issues or in specific states. In his new article, Fordham’s Aaron Saiger assesses evolving state approaches to agency deference doctrines, arguing that state courts’ roles as common-law courts that are bound by federal supremacy make irrelevant most arguments supporting or opposing federal deference. Instead, Saiger urges, state courts should chart their own course.
The University of Utah’s Christina Koningisor extends her work on transparency in a fascinating new article on the secrecy surrounding police records at the state and local levels. Although state and local governments are typically subject to extensive transparency requirements, Koningisor excavates statutes, case law, and practices that establish a sort of police secrecy exceptionalism, which she critiques as overbroad.
Shifting to work on specific states, a new issue of the South Dakota Law Review explores that state’s constitutional law of impeachment, made timely by the first-ever impeachment and removal of a South Dakota official last year. Hannah Haksgaard, Tyler Moore, and Gabrielle Unruh introduce the special issue here.
Many of the insights offered by these pieces depend on state courts. Several new pieces begin to fill the gaps in state court scholarship. Northwestern’s Zach Clopton surveys the scope and dynamics of original jurisdiction across state courts in his new article, “Power and Politics in Original Jurisdiction.” As the title suggests, one of Clopton’s core insights is that “original jurisdiction can be political,” just like court packing or other forms of court curbing — and that state legislatures can and do alter it to suit their preferences.
Turning from jurisdiction to procedure, Campbell’s Marcus Gadson argues in the Michigan Law Review that state courts cannot adopt modern federal-court pleading standards — which have been ratcheted up in recent decades — without violating state constitutional jury trial rights. Gadson also makes a compelling case that adopting federal pleading standards would flout state courts’ role in state governance, which often entails a “right to a remedy” and a promise of more open courthouse doors.
Continuing on the theme that state courts are distinctive, Marquette Law’s Chad Oldfather’s recent essay “Rucho in the States” drives home the need to think about state judicial power on its own terms. In line with seminal work by Helen Hershkoff, Oldfather notes that state judicial power is different from and more expansive than federal power. He describes the U.S. Supreme Court’s decision in Rucho v. Common Cause “as an invitation” — though largely ignored to date — “for state courts to engage more deeply with questions concerning the nature of the judicial power they possess.”
That’s all for this installment. It’s a delight to have too much to cover. State public law is an active space that deserves its fair share of attention — and I’ll be back in a few months with more.
Miriam Seifter is a professor of law and faculty codirector of the State Democracy Research Initiative at the University of Wisconsin Law School. You can reach her at email@example.com.
The views expressed are the author’s own and not necessarily those of the Brennan Center.