Scholarship Roundup: New Year Edition

The year is young, but plenty of state public law scholarship has been published since my last round-up.

First up: The New York University Law Review has recently published the rich volume of articles and essays from its 2024 symposium “The Promise and Limits of State Constitutions.” (The event was co-sponsored by State Court Report and the Brennan Center. Videos and full transcripts of the conversations are available here.)

Kicking off the volume, Helen Hershkoff’s introduction assesses the field of state constitutional law, observing it is more heterogenous and developed than it was 50 years ago when Justice William Brennan famously called for state courts to “step into the breach.” But, she writes, challenges remain, including the risks that federal courts may hold outsized sway over state courts or that state courts may under-enforce existing federal rights. A foreword by Michael Milov-Cordoba and Alicia Bannon provides context for the conference and symposium issue. And Marcus Gadson’s wonderful article “Why Study State Constitutional Law?” argues that state constitutions and their amendments over time allow exploration of and participation in what it means to be American in a way that other legal fields don’t.

Several other symposium contributions zero in on state courts. Judith Resnik’s article “The Capital of and the Investment in Courts, State and Federal” focuses on court infrastructure, urging that Congress provide greater support for state and federal courts to provide meaningful access and remedies, especially in light of economic inequalities. Carolyn Shapiro’s article “State Law and Federal Elections After Moore v. Harper” argues that, in light of longstanding federalism principles, federal courts properly defer to state courts’ interpretation of state law — and that the exception described in Moore v. Harper is narrow. Mary Ziegler’s article “Reversing the Reversal of Roe: State Constitutional Incrementalism” describes “state constitutional incrementalism” — an effort to secure modest victories in state court “in a bid to ultimately transform federal constitutional law” — illustrated through developments in abortion rights. Gerald Dickinson’s essay “Revisiting Rucho’s Dissent: Percolation and Federalization” examines the emerging state constitutional doctrines on partisan gerrymandering that could someday inform federal jurisprudence.

Two contributions to the symposium examine state legislatures. Robinson Woodward-Burns’s essay “State Constitutions, Fair Redistricting, and Republican Party Entrenchment” traces the history of the Republican Party’s increased control of state legislatures over the past half century, identifying reapportionment, political geography, urban-rural polarization, and subsequent entrenchment as drivers. My own article “State Legislative Vetoes and State Constitutionalism” takes a deep dive into one slice of structural state constitutional law: the operation and jurisprudence of legislative vetoes over executive actions. The article argues that state constitutions’ democratic commitments help explain why vetoes by legislative committees are unconstitutional — and that state courts’ distinctive jurisprudence on these issues reinforces the importance of studying the states on their own terms.

In addition to the New York University Law Review symposium pieces, don’t miss several other interesting new works in state constitutional law. The most recent issue of the New Mexico Law Review stems from a symposium on New Mexico’s Civil Rights Act, a landmark 2021 law that seeks greater accountability for state or local officials at a time when federal Section 1983 actions are increasingly thwarted by doctrines such as qualified immunity. As contributions by Joanna Schwartz, Matthew Segal, and others emphasize, state-level reforms along these lines are the most realistic way to expand meaningful civil rights protections, although they are neither cure-alls nor immune from erosion.

Outside of symposia, I’ll flag three other thought-provoking new works in state constitutional law. Quinn Yeargain’s article, “Against Environmental Rights Supremacy,” tempers recent enthusiasm for rights-based lawsuits seeking to achieve climate victories. Especially timely after the Montana Supreme Court’s December ruling in Held v. Montana, the article argues that broad, rights-based strategies are an ineffective way to achieve decarbonization and that advocates should focus on more concrete policy changes. Christina Koningisor’s essay “The Other Press Clauses” urges greater attention on state constitutions’ press and speech clauses. These provisions may provide broader protection to journalists than the federal Constitution, she writes, and might therefore serve as an independent source of rights, a backstop against federal retrenchment, or a springboard for future federal rights expansion. And Dan Rodriguez’s book Good Governing, a study of the state police power, is a must-read for state constitutional law scholars. Rodriguez identifies the police power — the state’s power to regulate for the general welfare — as the way that state constitutions operationalize their commitment to good governing. The book explores the power’s evolution and its operation and limits under state constitutions, ultimately advocating for more “creative and ambitious” use of the police power to solve pressing contemporary problems. 

Two other new articles of note are authored by state court judges themselves. In “A State Supreme Court Justice’s Take on Delegation and Deference,” Justice R. Patrick DeWine discusses the Ohio Supreme Court’s recent experience with doctrines of deference and delegation. Ohio rejected mandatory agency deference prior to the U.S. Supreme Court’s decision in Loper-Bright v. Raimondo, and DeWine observes that jettisoning mandatory deference “has allowed us to look with more clarity at questions about whether the legislature has in fact delegated the exercised authority to the administrative agency.” Gathering examples, he explains that the court has sometimes concluded an agency acted within the scope of its delegated authority and other times that the agency has exceeded that authority. 

In “Miles to Go,” Judge Dan Friedman of the Appellate Court of Maryland responds to Nicholas Cole’s “2023 Robert F. Williams Lecture on State Constitutional Law,” now published in the Rutgers Law Review. Cole’s talk stressed the importance of studying state conventions and described his ongoing project of digitizing and affording greater access to state convention records. Friedman’s response shares enthusiasm for the project but also, like earlier work by Maureen E. Brady, urges caution: state convention records are limited, and treating the remaining records as a usable body of work may perpetuate skewed understandings of constitutional meaning. 

Finally, scholars of local government law — an important component of state constitutional and statutory law in addition to a field of its own — have also produced notable recent work.

Brian Highsmith’s gripping new article “Governing the Company Town” shows how the historical company town — best understood as the existence of private domination without accountability — has reemerged in the modern day through corporate-dominated enclaves (like Disney’s Reedy Creek Improvement District and Elon Musk’s proposed Starbase city) facilitated by changes in local government law.

Justin Weinstein-Tull’s essay “Finding Equality in Local Government” — a review of Michelle Wilde Anderson’s beautiful book The Fight to Save the Town — offers an account of equality as a product of collaboration between local governments and residents rather than a top-down or court-centric legal right.

I’ll end with one more book recommendation. Sara Bronin’s new book Key to the City is a compelling revelation of how zoning has shaped and can shape the physical and social environments we live in. Zoning has been intertwined with very serious problems: perpetuating racial segregation, driving sprawl, degrading the air, and even worsening human health. But the book also describes ways that zoning codes can be revamped for positive change for local economies, households, and people’s lived experiences. Bronin offers examples of these changes around the country.

As always, please feel free to send new work my way. And stay warm! It’s currently balaclava season in the Midwest.

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, Scholarship Roundup: New Year Edition, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 27, 2025), https://statecourtreport.org/our-work/analysis-opinion/scholarship-roundup-new-year-edition