New Year Scholarship Roundup: Federal-State Conflict, State Courts, and Election Administration

A new semester — and deep freeze — make for a good time to catch up on state public law reading. In line with the times, multiple scholars are exploring state power and interstate conflict in our federalist system. Here’s a roundup of what’s new.

Federalism, Conflict, and Interstate Tension

In “Agonistic Federalism,” Aziz Huq and Zach Clopton observe the emergence of “no holds barred” conflict between states and the national government. They describe potential state responses to national antagonism, identify the unsettled doctrinal questions raised by this era of escalating intergovernmental hardball — for example, questions of anti-commandeering — and sketch imaginable endgames. It is a valuable and sobering read.

In “The Tenacious Power of Constitutional Torts,” Joanna Schwartz emphasizes the benefits of suing the government for violating constitutional rights, writing against a literature that often emphasizes the drawbacks and limits of such litigation. (Although her article focuses on Section 1983 litigation against state and local officials, she also notes the rising interest in liability for federal officials, potentially through state “converse 1983” laws.)

Noah Chauvin’s recent essay “Can States Force ICE to Take Off the Masks?” offers a negative answer to that question, while also highlighting alternative ways that states may push back against the practice.

Ethan Lowens’s new article focuses on rising tension between states: What if increasing state criminalization of conduct that is lawful in other states (such as abortion or gun possession) leads to unwelcome extradition demands? In “Interstate Extradition,” Lowens proposes that states amend the Uniform Criminal Extradition Act to reciprocally authorize governors to “reject unwelcome extradition demands,” an approach he describes as aligned with historical practice.

State Courts

Several new pieces examine state courts. An essay by Bryna Godar and me, “Court Reform and State Constitutions,” considers court reform in the states through the lens of state constitutional law. State legislatures routinely attempt to shape state judicial outcomes by altering state courts’ structure and powers. We argue that while state constitutions do not bar measures that align state courts with popular preferences, such changes at a minimum require public engagement and validation — which is too often absent today.

Other new works consider the methodologies of state court decision-making. In “Species of State Constitutional Lockstepping,” Michael L. Smith breaks down some of the distinct ways that state courts fall in line with federal precedent. Darrell A. H. Miller’s essay “Lockstepping Structure” skeptically examines the phenomenon of state courts following federal precedent on questions of government structure. And Serena Mayeri’s essay “History and Tradition in Constitutional Interpretation: Resistance in the States” identifies and assesses ways that state courts have reasoned about history in post-Dobbs abortion cases. (Mayeri and Miller’s articles, as well as some others discussed in this post, appear in an annual special volume of the Wisconsin Law Review devoted to public law in the states.)

Recent work has also taken up important questions related to litigation and remedies for state constitutional violations. Sarah Swan’s essay “Tort Logics for State Constitutional Injuries” offers insights on whether and when state constitutions contain implied rights of action for state constitutional violations. Jonathan Marshfield’s article “Rethinking Structural Injunctions in State Constitutional Law Litigation” argues that, while federal courts have long been wary of remedies that enmesh the courts in reforming government institutions, state courts’ many differences justify a more robust remedial role.

State Constitutions

New work has also shed light on questions of rights and structure in state constitutional law.

Adam Davidson’s article “No Exceptions: The New Movement to Abolish Slavery and Involuntary Servitude” examines recent state constitutional amendments that completely ban both slavery and involuntary servitude, without the exceptions for crime included in the U.S. Constitution’s 13th Amendment. Davidson takes up an important question for the state constitutional field: Why haven’t these amendments led to change on the ground, in this case to forced prison labor? He argues persuasively that organizing, litigation, structural reform, and political battle must all work in concert to effectuate change.

Additional articles and essays explore the potential of state constitutional rights in other domains. In “State Constitutional Duty and Public Employee Speech,” Scott Bauries contends that state constitutions — based on the text of their speech provisions and guided by an underlying political theory of the government’s fiduciary duty — may provide greater protection for the speech of public employees than the federal Constitution provides under the Garcetti v. Ceballos framework. And in “State Constitutions and the Right to Gender Autonomy,” Katie Eyer analyzes how state constitutional rights provisions could support a right to determine one’s own gender without state interference.

Turning from rights to structure, Gregory Schwab’s article “Gubernatorial Emergency Powers” critiques state laws that stripped governors of their emergency powers in the wake of the Covid-19 pandemic. Schwab argues that this legislative backlash is constitutionally suspect and could become disastrous in practice, whereas more measured reforms could restrain governors without catering to short-sighted legislative politics.

Lucien Ferguson’s article “Contesting State Capture” proposes that when state legislation has indicators of capture, courts should apply a standard more demanding than toothless rational basis review. Ferguson grounds this standard in state constitutional constraints on legislative power and notes that some state courts already apply variants of this heightened review.

State Institutions

New articles also consider specific institutions of state government. In this election year, I’ll highlight several focused on elections and democracy. John J. Martin’s article “Unilateral Election Administration” — winner of the AALS Section on Election Law’s Distinguished Scholarship Award — draws attention to an understudied feature of election administration. Although American elections are decentralized overall, with power residing in states and localities, each state has a chief election official, a single actor with potential power to affect election outcomes. The article reflects on how to insulate these unitary actors from partisan manipulation.

Derek Clinger’s article “Harnessing Unclaimed Funds for Election Litigation,” winner of a competition organized by Auburn University, offers a practical solution to a pressing problem. To support the cost of election administration, he suggests, states may dedicate a portion of state-held unclaimed funds (assets like abandoned bank accounts) to election administration expenses.

Finally, an essay by Lisa Manheim, “Problems of Compliance in Election Law,” illuminates compliance standards that play an important role in election law across the country. These standards determine how completely various election rules must be followed to be deemed fulfilled — for example, is strict compliance required, or only substantial compliance? Manheim deftly shows that compliance standards make intuitive sense, but that the case law surrounding them is convoluted. She offers suggestions for improvement.

• • •

Wishing everyone a safe and warm start to the spring semester. As always, feel free to send new work my way!

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, New Year Scholarship Roundup: Federal-State Conflict, State Courts, and Election Administration, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/new-year-scholarship-roundup-federal-state-conflict-state-courts-and