Scholarship Roundup: End of Semester Edition

The 2023–24 academic year has been an active time for state public law scholarship. As we close the casebooks for now, here are some new pieces to read this summer.

Start with new work on state constitutions. The Yale Law Journal Forum has published a collection titled Revitalizing State Constitutions: A Turning Point for State and Federal Constitutional Rights, and each contribution is worth reading. (I have previously mentioned my contribution to this collection, in which Columbia Law’s Jessica Bulman-Pozen and I explore the right to amend state constitutions.)

A coauthored essay in the collection by professors Mila Versteeg and Emily Zackin, “De-judicialization Strategies,” notes that constitutionalism does not always follow the familiar pattern of conferring authority upon courts. Instead, state-level political actors may also pursue de-judicialization, taking policy questions away from courts by adding detailed provisions to state constitutions. After theorizing this strategy, Versteeg and Zackin then describe how it has been put into practice in the post-Dobbs battles for abortion rights at the state level.

Next, in “Tar Heel Constitutionalism: The New Judicial Federalism in North Carolina,” North Carolina Supreme Court Justice Anita Earls observes that the promise of state constitutions in protecting individual rights is a contingent one, depending in part on the context of the claim and the composition of the court. North Carolina’s record, she describes, is mixed: it has sometimes interpreted the state constitution to protect rights more robustly than the federal Constitution, and other times it has not.

The final piece in the collection is an essay by Michigan Law’s Leah Litman and Penn Carey Law’s Kate Shaw, “The Bounds of Moore: Pluralism and State Judicial Review.” The essay reminds us that the independent state legislature theory, if still in play, could seriously limit the power of state courts and constitutions. Although the U.S. Supreme Court’s 2023 decision in Moore v. Harper rejected the maximalist version of the theory, it failed to fully close the door. Litman and Shaw show how the uses of the independent state legislature theory that the Court’s opinion and Justice Brett Kavanaugh’s concurrence might seem to allow — like imposing an “interpretive straitjacket” that requires state courts to use textualism or reach preferred interpretive results — are at odds with the pluralist interpretive tradition of state courts. If the Court is serious about using history and tradition, they argue, the independent state legislature theory cannot plausibly invalidate state court decisions for straying too far from the Court’s own preferred interpretive methods.

Offering another view of state constitutions, University of Kentucky’s Josh Douglas has a timely new article, “The Power of the Electorate Under State Constitutions,” forthcoming in the Florida Law Review. Douglas identifies state constitutions as conferring a “multilayered right to vote.” Under a holistic reading of the rights and structural provisions that establish this right, Douglas posits, state constitutions recognize “the participation interest of the electorate as a whole as the most important input to democratic governance.” The article then explains how to adjudicate this right — not through mere balancing tests, but through a standard that rejects encroachment upon the voters’ ability to direct their government. Douglas’s piece is a valuable read going into election season.

Speaking of election season, election-related litigation continues to soar. Some of these lawsuits will fail to meet the elements of standing doctrine in federal court, especially in light of federal standing doctrine’s insistence on individualized injury rather than generalized grievances. But my State Democracy Research Initiative colleague Adam Sopko and I argue in a new symposium essay, “Standing for Elections in State Courts,” that election standing is and should be different in state court, where justiciability requirements are typically more flexible. Building on work on election subversion by scholars like Derek Muller and Lisa Marshall Manheim, we recognize that the surge of election-related lawsuits is not optimal, and some suits may be baseless or in bad faith. Still, we argue that adjudicating rather than avoiding election disputes upholds the state constitutional commitments to democracy and open courts, and it can provide certainty, stability, and trust in elections.

On the topic of state courts, Sopko also has a fascinating new piece on state court administration, “Invisible Adjudication in State Supreme Courts.” Much attention has understandably focused in recent years on the U.S. Supreme Court’s shadow docket, through which the Court has made consequential rulings with limited process and transparency. But Sopko shows that state courts do that and much more: they have more expansive powers to determine or influence case outcomes, and they can exercise these powers with even less transparency and process. As more attention turns to state courts, understanding these mechanisms is ever more important.

Other scholarship focuses on judicial elections themselves. Given the influence of state courts and the polarization and contentiousness of state judicial elections, are reforms necessary to protect state court legitimacy? In a new article, “The Ghost Justice: A Means to Scare the Special Interests Controlling Retention Elections of State Supreme Court Elections,” St. Thomas University’s Kevin Frazier explores the potential for by-the-court opinions ghostwritten by a permanent clerk to take down the temperature in states with retention elections and promote independence and impartiality.

In a new article titled “Default Procedures,” Fordham Law professor Pamela Bookman highlights a different feature of state courts that warrants greater attention: a significant share of state court adjudication consists of debt collection cases in which defendants never appear. Default judgments are routine. If that is what our state court system looks like, Bookman argues, we need to reconceptualize the state judicial role to ensure just outcomes. Reforms that focus on notice or representation are important, but they cannot fully address the phenomenon of absent defendants. Instead, reformers should consider procedures to ensure that courts accurately apply the law when defendants are absent.

Finally, this spring has been an especially active time for scholarship that looks inside states. UC Law San Francisco professor Dave Owen’s new article, “The Water District and the State,” is an eye-opening revelation of the pervasiveness, power, and undemocratic structure of water districts in the American West. Many state and local government scholars are aware of water districts (among other things, they feature prominently in U.S. Supreme Court cases on the permissible structures of local government). But Owen’s article is a must-read to understand their modern operation and ability to thwart state policy — and whether reforms might be in order, including rethinking contemporary notions that states should be hands-off when it comes to local governments.

Several other papers on the internal organization of states are also worth your attention. In “Public Duties for the New City,” Rutgers Law’s Sarah Swan argues that local governments bear, and should embrace, a legally enforceable duty of care to protect their constituents. This duty, rather than the existing frameworks that insulate local governments from police violence and failures to protect residents, would serve the interests of constituents and cities alike, especially as cities seek recognition as legitimate and independent sovereigns. In “Regulating Local Incentives,” Harvard Law fellow Brian Highsmith highlights and historicizes corporate power over cities, describes its harms, and proposes ways to regulate it. And in reflecting on who holds sway over local governments today, another interesting piece is a short book chapter by Michigan Law’s Noah Kazis, “Local Government Law for the 100-Year Life,” which highlights how the outsize power of senior citizens (who are, he stresses, not personally at fault) skews local governance.

I’ll be back in a few months with more great scholarship to check out. Happy end of semester to all!

Miriam Seifter is a professor of law and faculty codirector of the State Democracy Research Initiative at the University of Wisconsin Law School.