Scholarship Roundup: September 2024 Back to School Edition 

Welcome back to a new school year and a new roundup of state public law scholarship! This edition summarizes both articles and books you should check out.

Notable Articles

Let’s start with new articles on state-level democracy. In “Give Parents the Vote,” forthcoming in the Notre Dame Law Review, Joshua Kleinfeld and Stephen Sachs observe that children form almost a quarter of the national population, have distinct policy interests, and are served poorly by current policy across a range of issue areas, from education to climate change. Kleinfeld and Sachs propose a solution: states can change statutes or constitutions to give parents the right to cast proxy ballots on their minor children’s behalf. In response, Nick Stephanopoulos has penned “Give Young Adults the Vote.” Stephanopoulos agrees with Kleinfeld and Sach’s diagnosis of a status quo that undervalues children’s preferences, but argues that parental voting won’t solve the problem, because today’s parents diverge significantly from the political preferences of their children. Parents, he explains, are more politically conservative and less “attentive to the long run” than their kids. His answer: young adults, not parents, should serve as the proxy voters for children.

Turning from the composition of the electorate to elections for state courts, Jake Mazeitis argues in a forthcoming Nebraska Law Review article that the federal Voting Rights Act supports meaningful remedies for voters who wish to challenge the racial homogeneity of state judicial retention elections.

And in “Purcell Principles for State Courts,” written for a Wisconsin Law Review special issue on “Public Law in the States,” my colleagues Derek Clinger and Rob Yablon address the timely question of how state courts handle litigation arising close to an election. At the federal level, they note, the so-called Purcell principle — which holds that courts should avoid changing election rules too close to an election, given the risks of disruption and voter confusion— often stands as a significant barrier to judicial relief in the run-up to an election. In state courts, by contrast, they uncover a different story. State courts have eschewed the U.S. Supreme Court’s strong-form version of the Purcell principle in favor of a more holistic, equitable inquiry that is less categorically averse to pre-election intervention.

That is not to say, however, that Purcell has not affected state jurisprudence. Wilfred Codrington’s new article observes that the fact that even some state courts are echoing Purcell’s tenets — even though the decision plainly does not bind them — breeds concerning uncertainty around fair and just elections, especially as state courts apply those tenets in varied ways. Both articles are valuable reads this election season.

There has also been terrific work on state courts themselves, including on judicial transparency, precedent, and selection. A Northwestern Law Review symposium keynote address by Tanina Rostain, “Access to Justice as Access to Data,” highlights why state and local court data matters, and the extreme barriers to obtaining such data today. She encourages researchers and policymakers to collaborate on solutions.

Two new articles by professor (and former Kansas judge) Steve Leben provide insightful takes on judicial selection and precedent, respectively. In “Partisan Judges,” Leben urges acknowledging that judges’ political values matter, but argues that we could improve perceptions of judicial legitimacy (state and federal) by selecting jurists with intellectual humility. In “Disagreeing with Yourself: Horizontal Stare Decisis in State Intermediate Appellate Courts,” Leben reflects favorably on the absence of horizontal stare decisis in Kansas and some other state courts — meaning that different panels of the same court can reach competing decisions — allowing them to do justice in individual cases and to continue developing the law, albeit with costs to predictability.

Rounding out this selection of state courts literature is “The Market Value of Partisan Balance,” forthcoming in the Northwestern University Law Review. In the piece, Brian Feinstein and Daniel Hemel explore the effects of a fascinating state constitutional anomaly: the Delaware Constitution’s balanced judiciary requirement, which provides that neither of the major political parties can have more than a “bare majority” of seats on the state supreme court or other state courts. This provision recently survived a federal constitutional challenge, and by examining how equity markets responded to the litigation, the authors find evidence in line with the view that a politically balanced judiciary adds value to firms incorporated in Delaware.

Speaking of state constitutions, several fascinating new pieces take deep dives into underappreciated state clauses. First up, a new article by Anthony Sanders of the Institute for Justice explores the history of what he terms the “Lockean Natural Rights Guarantees” in roughly two thirds of state constitutions — the provisions that identify inherent or inalienable rights, often naming “life, liberty, and the pursuit of happiness,” among others. Sanders concludes that the drafters of these clauses generally believed them to be judicially enforceable, and more broadly, that the clauses’ promises were central to drafters’ views of the relationship between the individual and the state.

Another interesting new piece deals with a less common state constitutional provision. In “The ‘Mandatory’ Clauses of State Constitutions,” forthcoming in the Gonzaga Law Review, Timothy Sandefur of the Goldwater Institute sheds light on the backstory and meaning of the “mandatory clauses” in six state constitutions — provisions designed to emphasize to lax state courts in the nineteenth century that they could not treat constitutional requirements as optional.

In “Covenants and the Contract Clause,” forthcoming in the Virginia Environmental Law Journal, Molly Brady turns her expert sights to an overlooked constitutional conflict brewing over statutes that override restrictive covenants. These include, for example, state affordable housing statutes purporting to void covenants that would otherwise ban accessory dwelling units. Brady notes that such statutes have faced and may continue to face challenges under the Contract Clauses of the state or federal constitutions. The federal Contracts Clause, she explains, has become largely a “dead letter” (after a 19th century heyday), but it “continue[d] to live a life of its own as a matter of state constitutional law” — and may yet have another life at the federal level. 

In “State Constitutional Limitations to Cities Taxing the Digital Economy,” forthcoming in the Virginia Tax Review, Lauren Shores Pelikan argues that state constitutional tax limitations — intended to rein in excessive tax burdens — are now creating a serious financial problems for cities by barring them from taxing the expanding digital economy.

Finally, in “Democracy and State Education Governance,” now out in the Belmont Law Review, Quinn Yeargain explores the state constitutional development of education governance, which has evolved from “a near-universally democratized area of policymaking,” in which most states elected their education administrators, to an era of more mixed elective leadership and insulated administration.

Turning from state constitutions to state institutions, there have been several excellent, if not entirely encouraging, articles on state-level administration.

In “Unwritten Administrative Law and the Regulatory Last Mile in Cooperative Federalism,” forthcoming in the Pennsylvania Law Review, Anthony Derron identifies a “last mile” problem in cooperative federalism regimes: federal law depends on state implementation, but state administrative law is often unwritten and opaque.

A new paper by Jennifer Selin and Jordan Butcher hits similar notes through different methods. In “How Free is Information? Transparency in State Government,” they assess the transparency regimes across the 50 states, providing useful detail on the varied features of public records laws across the country. They also report the findings of an original empirical study of 248 state agencies’ response to the same Freedom of Information Request. One significant conclusion they reach is that the black-letter law does not fully explain the variation across the states; instead, other internal and external pressures affect how open a state’s government is in practice. For example, an agency’s policy mission, its political environment, and the threat of sanctions can all affect how an agency responds to open records requests.

Jessica Steinberg and Elenore Wade’s new article in the Indiana Law Journal, “State Legislatures and the Uptake Puzzle in the Expungement of Criminal Records,” pursues another puzzle of state governance: 32 states allow individuals with felony convictions to expunge their criminal records, but only one in six eligible people do so. The explanation, they uncover, lies in avoidable institutional barriers — informational, procedural, and financial. The authors call on state legislatures to focus on procedural access so that these statutes can be more than “empty promises.”

Finally, Adam Zimmerman’s recent Yale Law Journal article, “Ghostwriting Federalism,” is a fascinating exploration of the perhaps startling fact (at least for stylized notions of dual federalism) that federal agencies frequently write state laws or advise state legislatures.

Great Books

It has been a banner year for books that have interesting state public law angles.

First up, David Pozen’s The Constitution of the War on Drugs is a gripping and generative analysis of how constitutional law, so often the polestar of civil rights and civil liberties discourse in this country, failed to ameliorate the widely discredited “war on drugs.” In the 1960s and 70s, some jurists — notably in state courts and under state constitutions — identified constitutional drug rights. In exploring how and why their perspective did not prevail, Pozen’s account provides a fresh perspective on both the war on drugs and American constitutional law, including in the states.

State public law likewise makes an appearance in several other terrific new books. In Emily Zackin and Chloe Thurston’s The Political Development of American Debt Relief, readers will learn not just about the waxing and waning of relief for debtors, but also the important early role of state legislatures and state politics in that evolution. Anthony Michael Kreis’s Rot and Revival explores the interrelationship between constitutional law and politics, with discussions that extend to state courts and state constitutional conventions. And Nick Stephanopoulos’s Aligning Election Law identifies the value of alignment between governmental output and popular preferences, and includes analysis of state constitutions and state-level policy options.

Finally, there are several books I’m looking forward to that are scheduled for publication in the coming year. Keep your eye out for Dan Rodriguez’s Good Governing, a deep dive into the state police power; Alyx Mark’s Courts Unmasked: Civil Legal System Reform and Covid-19, synthesizing how state courts reacted to the Covid-19 pandemic; and Marcus Gadson’s upcoming book on state constitutional crises.

As always, feel free to send new work my way — and good wishes to all on the start of a new semester!

Miriam Seifter is a 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: September 2024 Back to School Edition, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 13, 2024), https://statecourtreport.org/our-work/analysis-opinion/scholarship-roundup-september-2024-back-school-edition.