Back-to-School Scholarship Roundup: State Courts, Constitutional Law, and Federalism

It’s hard to believe summer is winding down. Here’s a roundup of new scholarship on state public law to get you ready for a new semester.

State constitutional law

“First things first,” as renowned Justice Hans Linde once wrote about state constitutions. I’ll start with new work in state constitutional law.

For an overview of the field, from rights and structure to local government and federal-state relations, Jessica Bulman-Pozen and I have a new casebook out this summer with Foundation Press, State Constitutional Law: Cases and Principles. We’d be happy to discuss the book or talk about teaching state constitutional law, more generally, with anyone considering or currently offering the course.

Marcus Gadson’s book Sedition: How America’s Constitutional Order Emerged from Violent Crisis is now out with NYU Press. It’s a must-read — a moving and incisive telling of the violent conflict that forged some early state founding documents and recurred in state governments across the country. As the nation reflects on recent and potential constitutional conflicts, Gadson’s book offers important reflections from state experiences.

My colleague Bryna Godar’s article “Disenfranchisement Creep,” forthcoming in the Virginia Law Review, describes overlooked ways that states improperly disenfranchise voters, both through formal, legalistic measures and informal hurdles. She argues that these forms of disenfranchisement violate state constitutional limits and that state constitutional litigation may provide a corrective.

Molly Brady’s new symposium piece, “Debates Over ‘Public Use’ in the State Constitutional Conventions,” takes on a subtlety with intrigue for those interested in takings law. Her essay reveals how 19th-century state constitutional drafters debated the meaning of “public use” in the takings context. Their debates did not reflect an inevitable march (or antipathy) toward the broad definition of public use the U.S. Supreme Court adopted in Kelo v. City of New London a century later; rather, the state debates and answers reflect a range of views about the breadth of public use and its limiting principles.

Two other new pieces echo Justice William Brennan’s famous call for state courts to interpret their constitutions more broadly than the federal counterpart. William Berry’s article, “Rescuing State Punishment Clauses from the Deferential Doctrine,” criticizes state court indulgence of draconian criminal sentences and argues that state punishment clauses — analogues to the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment — impose limits on state sentencing statutes.

And in “New Judicial Federalism and the Establishment Clause: Classroom Ten Commandments as a Case Study in State Constitutional Protection,” Caroline Mala Corbin contends that state courts can and should interpret state constitutions to insist on church-state separation, despite the U.S. Supreme Court’s narrowing of federal Establishment Clause doctrine. Under her approach, a state court would properly reject laws like Louisiana’s mandate to display the Ten Commandments in every public school classroom.

There is also great value in work that focuses on the constitutional law of a particular state or a subset of states. Katrina Fischer Kuh, Nicholas Robinson, and Scott Fein’s article, “New York’s Constitutional Guarantee of Environmental Rights,” explores New York’s new right “to clean air and water, and a healthful environment,” offering context to assist judicial interpretation. My colleague Derek Clinger’s new piece, “Constitutional Limits on Legislative Overrides of Statutory Initiatives in Ohio,” forthcoming in the Case Western Reserve Law Review, addresses the timely question of whether the state’s legislature may override statutory initiatives enacted by the people and argues that the Ohio Constitution limits such overrides. And in “State Constitutional Rights to Privacy,” Tiffany Li surveys and analyzes the 11 state constitutional provisions that expressly protect individual privacy, considering the comparative scope of these clauses and their implications for enforcement. 

State courts

The past few months have also yielded fascinating new work on state courts. In Constance Van Kley’s new article, “The Statewide Injunction: State Judicial Power and Meaningful Remedies” (and a State Court Report feature), she predicts that the debate over universal injunctions, now heated at the federal level, is heading for state courts. But state courts, she argues, should resist federal mimicry on this topic; state constitutional and institutional differences support statewide injunctions, whatever the correct answer is at the federal level.

Adam Sopko’s forthcoming article in the Southern California Law Review, “The Supervisory Power of State Supreme Courts,” brings to light the broad authority that state high courts exercise over the operation of their state’s judiciary. The article details potentially surprising exercises of supervisory power that affect individual rights and interbranch relations and defends courts’ supervisory authority while also demarcating its limits.

In “Unconstitutional But Not Unconstitutional Enough,” forthcoming in the Cornell Law Review, Katherine Steefel criticizes a doctrinal rule that most state courts apply: In 40 states and the District of Columbia, according to her survey, courts refuse to invalidate a legislative enactment unless it is unconstitutional “beyond a reasonable doubt.” That standard, she argues, is inconsistent with the Supremacy Clause and fails to fulfill the judicial role of protecting rights and rejecting unconstitutional statutes.

Federalism and state institutions

A number of recent pieces address timely issues related to federalism or state government institutions.

In “Federalism and the New National Security,” forthcoming in the Harvard Law Review, Ashley Deeks and Kristen Eichensehr describe a rise in state laws addressing national security, from regulation of TikTok to laws governing international commercial dealings. Deeks and Eichensehr suggest pathways to harness benefits of this “entrepreneurial federalism” while minimizing its possible downsides.

In “The State Capacity Crisis,” Nicholas Bagley and David Schleicher add an important dimension to ongoing scholarly dialogues about state capacity (and “abundance”), which critique American government’s capacity to provide effective basic services and infrastructure. Bagley and Schleicher agree with these critiques, but they observe that much of the blame is misdirected. It is state and local governments, not the federal government, that provide most of the services people rely on, so it is state and local governments whose capacity problems we must address. Bagley and Schleicher take up that task by identifying key drivers of subnational governmental dysfunction: a lack of accountability in subnational policies, overly strict administrative law, and highly restrictive fiscal limits. That list may sound dry, but the piece is not, and it’s important reading for those interested in effective government.

Taking up a different potentially timely topic, Quinn Yeargain argues in a forthcoming UCLA Law Review Discourse essay, “State Enforcement of the Twenty-Second Amendment,” that states are empowered and obligated to enforce the 22nd Amendment, which provides that “no person shall be elected to the office of the president more than twice,” if a president seeks a third term. Yeargain argues that the Supreme Court’s opinion in Trump v. Anderson is inapplicable to the 22nd Amendment context and that state officers would have a duty to bar a would-be third-term president from the ballot.

What about instances when states clash with one another? In “States as Shields,” forthcoming in the Minnesota Law Review, Lindsay Wiley considers conflicts that arise when one state’s law tries to shield its residents from the laws of another state (like abortion shield laws). Wiley argues that the parens patriae doctrine (usually known as a basis for Article III standing) should be reconceptualized to inform these interstate conflicts, supporting intrastate protections but not an “extraterritorial sword.”

Finally, two new pieces highlight state institutional roles that may fly under the radar. “In Federalism in the Adjudicative State,” David Chen observes that states commonly play a role in federal agency adjudication schemes, resulting in a more plural and distributed adjudicative authority than most administrative law scholars envision. And in “County Government Unbounded,” Daniel Rosenbaum tackles another understudied institution within states — the county government — and explores its underappreciated power over consequential matters, using examples of sheriff’s offices and library districts.

As always, please send me new articles and reading recommendations. Happy end of summer to all.

Miriam Seifter is the Richard E. Johnson Bascom Professor of law and faculty codirector of the State Democracy Research Initiative at the University of Wisconsin Law School.

Suggested Citation: Miriam Seifter, Back to School 2025: New Scholarship on Federalism and State Constitutional Law, Courts, and Institutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 20, 2025), https://statecourtreport.org/our-work/analysis-opinion/back-school-2025-new-scholarship-federalism-and-state-constitutional-law