Scholarship Roundup: Back to School Edition

It’s hard to believe that a new school year is in full swing. If the latest scholarship in the field of state public law wasn’t part of your beach reading, this roundup will help you catch up. New work in the field spans state courts, state administrative law, state-level democracy, and state constitutions. If you know of additional new scholarship, please send it my way.

Let’s start with new writing on state courts. A rich pool of recent work addresses questions surrounding access to justice. By way of background, over the past few years, a cohort of scholars has done much to direct attention to state civil courts as a field of study. They have highlighted that these courts often follow different rules and practices of civil procedure and discovery; are often “lawyerless,” in the sense that a supermajority of cases involve a party with no attorney (and that many judges are not lawyers either); and that civil court practices often empower large corporations and have an especially negative impact on people of color.

In recent months, several new entries have added to this literature, including a thought-provoking recent symposium in the Stanford Law Review on access to justice. One entry is Vanderbilt Law professor Lauren Sudeall’s essay, “Delegalization,” which explores the possibility of removing certain cases from the legal system altogether, paralleling the idea of decriminalization in criminal law. Rather than “leveling up” in areas like eviction and debt collection by providing litigants with more resources, delegalization would consider decreasing the volume of these cases altogether by reconceptualizing our legal understanding of “harm, liability, and remedies.”

Another essay in the symposium, by University of Washington’s Karin Martin, highlights how the pervasive use of criminal monetary sanctions has negative repercussions in the civil justice system. And an essay by Colleen Shanahan, Jessica Steinberg, Alyx Mark, and Anna Carpenter, “Lawyerless Law Development,” indicates that state civil courts generate little substantive appellate precedent and accordingly rely more on informal decision-making — with resulting advantages and disadvantages.

Outside the symposium, a new California Law Review article by Arizona State University’s Justin Weinstein-Tull offers a deep dive into traffic courts and reveals how their attributes — like informality and “extraordinary discretion” — challenge conventional understandings about the judicial role. In a Washington Law Review article, Campbell University’s Marcus Gadson argues that state constitutional law may provide a partial solution toward greater access to justice. The “open courts” clauses found in 40 state constitutions, Gadson posits, may require states to adjust their labyrinthine procedural requirements that currently deprive average litigants of a judicial remedy.

Finally, Rutgers Law’s Amy Widman’s new article takes a critical look at calls to remedy access to state courts by pivoting to state administrative adjudication — where, she finds, lack of legal representation is also a challenge. In addition to its contribution to the literature on access to justice, Widman’s article — based on both literature and surveys of administrative law judges — makes an important foray into mapping the often overlooked world of state administrative adjudication.

That brings us to new work in state administrative law. First, while national-level scholars have focused vigorous attention on recent developments in the major questions doctrine, University of Toledo’s Evan Zoldan considers whether a major questions doctrine makes sense for the states. In his forthcoming Washington Law Review article, he concludes the answer will typically be no, as state constitutions do not give legislatures a monopoly on policymaking, many states have interpretive commitments inconsistent with the major questions doctrine, and states lack a federalism (or localism) justification for such a doctrine.

What do judges think about developments in administrative law? The Harvard Journal of Law and Public Policy’s symposium volume has you covered and is worth reading in full. The introduction by Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit, a noted author and advocate of state constitutional study, highlights the variety in states’ doctrinal approaches as a function of states’ many differences. “If there can be a culture and cuisine of place,” he writes, “there can be an administrative law of place.”

The remainder of the essays spotlight those varied approaches, focusing on deference and nondelegation doctrines. Wisconsin Supreme Court Justice Brian Hagedorn describes recent changes to administrative law in Wisconsin, as well as recent litigation involving the separation of powers. Among other insights, Hagedorn notes that the practical effect of the state’s new limits on judicial deference to agencies remains unclear to date, and observes that the court’s jurists have used separation of powers principles in different ways — sometimes to limit executive power, and other times to limit the court’s own role. In any event, he predicts, recent high-profile legal battles in the state are likely “only the beginning.”

Additional symposium essays by Colorado Supreme Court Justice Melissa Hart and Georgia Supreme Court Justice Nels Peterson zero in on their states’ deference doctrines. Hart describes how Colorado has largely “chart[ed] its own path” rather than follow federal doctrine—though in a recent ruling involving an agency interpretation of administrative rules, the state high court echoed the “power to persuade” approach of Skidmore v. Swift. Peterson, in contrast, observes that Georgia has adopted the Chevron doctrine but applies it sparingly by imposing a high bar for ambiguity. Taken together, the pieces leave the impression that context, more than doctrinal formulations alone, will affect how agencies fare in state court.

Turning from deference to nondelegation, Pennsylvania Supreme Court Justice David Wecht and law clerk Lawrence McIntyre describe Pennsylvania’s “comparatively lively nondelegation docket” but conclude that it is the coincidental result of the cases that have been litigated rather than a strict doctrinal test. Finally, Kansas Supreme Court Justice Caleb Stegall describes the dynamism and evolution of administrative law and separation of powers law in Kansas, closing with the observation that courts have an important role to play in preventing “consolidated power.”

If consolidated power is a threat, new work in the state-level law of democracy is also essential reading. A forthcoming Oxford Handbook of Election Law looks to be full of valuable entries, including chapters by Brooklyn Law School’s Wilfred Codrington on “Voting Under State Constitutions” and by Harvard Law’s Ruth Greenwood and Sarah Sadlier on “Voting Under State Law.” Elsewhere, an essay by Columbia Law’s Richard Briffault discusses the 2022 “epic fail” of independent redistricting in New York, while a new article from Widener Commonwealth’s Quinn Yeargain, “Shadow Districts,” criticizes the omission of state boards from redistricting litigation. Ohio State professor Ned Foley’s essay on “The Nomination and Election of Statewide Candidates,” part of an Illinois Law Review symposium that I will cover further in the future, offers a series of proposals designed to achieve election winners that better approximate majority preferences.

Finally, several articles — and no doubt more to come — consider various aspects of state constitutional law. In a draft essay forthcoming in the Yale Law Journal Forum, Columbia Law’s Jessica Bulman-Pozen and I identify the right to amend state constitutions, and we offer a framework to separate unconstitutional attacks on direct democracy from permissible regulation of it. Two recent pieces discuss the prospects of originalism in state constitutional interpretation. St. Mary’s Law’s Michael Smith critiques the recent Idaho Supreme Court decision on abortion for suggesting that the state’s prior constitutional case law is uniform and originalist rather than varied and pluralist, with implications for the way courts and scholars characterize case law in other states.  In the Virginia Law Review Online, my colleague Adam Sopko’s essay “Catalyzing Judicial Federalism” questions whether originalism will gain traction in state courts given their different workload and institutional role, while also discussing state-level tools for protecting rights beyond judicial constitutional interpretation. And in a different vein that emphasizes the connection between state and federal constitutional doctrine rather than their divergence, Pittsburgh Law’s Gerald Dickinson explores in “Takings Federalization” how the U.S. Supreme Court sometimes “consults, borrows, or adopts” state rulings in developing federal takings law.

Much more work is on the horizon, including recent and upcoming symposia and new book projects. I’ll cover these in my next roundup. Until then, happy reading.

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 seifter [at] wisc [dot] edu (seifter[at]wisc[dot]edu).