Scholarship Roundup: That’s a Wrap on 2023

Scholars of state public law were busy in the last few months of 2023. In this roundup, I’ll focus on recent notable articles on state-level democracy, constitutions, and institutions, as well as two symposia that have generated thought-provoking work.

Let’s start with a selection of notable articles. Professor Rebecca Green’s new article, “FOIA-Flooded Elections,” forthcoming in the Ohio State Law Journal, dives into the deluge of records requests that have recently strained state and local election offices. Transparency in elections is important, she argues, but it must not operate to stymie a functional democratic process — and she proposes reforms that take account of both interests. Another insightful read in the context of state-level democracy is Professor Michael Morse’s article in the Boston University Law Review on state coordination of voter registration lists, which he identifies as a democratic vulnerability in election administration. Morse highlights subtle ways in which interstate coordination on “list maintenance” could foster enfranchisement — or could be coopted to fan narratives of fraud.

In “The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness,” Professor Kristen Bell unearths a history of state constitutional vagueness doctrines that were more demanding than the federal vagueness doctrine in the context of criminal punishment. Bell’s interesting article, published in the Cardozo Law Review, explores what a revival of this doctrine might mean for modern indeterminate sentencing practices and proposes a set of parole reforms. Turning from state constitutional doctrine to state constitutional change, Professor Jonathan Marshfield’s new article, “American Democracy and the State Constitutional Convention,” observes that whereas many state legislatures appear to be systemically misaligned with popular state majorities, state constitutional conventions are designed to empower majorities. In turn, he argues that taking seriously state constitutional conventions — rather than viewing them as a relic of the past or a danger to be avoided — could help move states toward pro-democracy reforms.

The contributions to Berkeley Law’s Jorde Symposium in October, presented in partnership with the Brennan Center, likewise explore amendment processes — and along the way, offer valuable insights about state constitutional amendments and conventions. The keynote lecture by Professor Jill Lepore on “The Philosophy of Amendment,” as well as responsive comments by Professors David Pozen and Sanford Levinson, will eventually be published in the California Law Review. For now, you can dig into Pozen’s important essay, “The Common Law of Constitutional Conventions,” available on SSRN. Pozen argues that our modern “conventionphobia” has underappreciated downsides, and he suggests that in imagining a modern federal convention, we should look to the 200+ constitutional conventions that states have held. The governing principles legible from state conventions, which foster majoritarian outputs and popular acceptance, could yield a federal convention design that is legitimate, tested, and normatively appealing.

Finally, a special issue of the Wisconsin Law Review features a set of 11 must-read essays spanning a wide range of timely state public law topics. This collection stemmed from the annual “Public Law in the States” conference of the State Democracy Research Initiative (which I co-direct).

Several essays address state-level democracy. Ohio Supreme Court Justice Jennifer Brunner’s essay critiques state-level attempts to impede ballot initiatives on abortion as an attack on democratic self-governance, while an essay by Professors Rosalind Dixon and David Landau highlight how state-level democratic dysfunction undermines a key premise of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization: that it was returning abortion to the democratic process. Offering another take on state-level democracy, Professor Aziz Huq challenges the view that federalism aids democracy, describing how state institutions can instead fuel national democratic backsliding.

Another series of essays in the special issue explore topics related to state courts. In “Public Law Litigation and Electoral Time,” Professors Zachary Clopton and Kate Shaw offer a new vocabulary to describe how the timing of elections may yield strategic behavior by state court litigants and judges. Their essay encourages acknowledgement — and wariness — of such strategic behavior, as especially when its objective is anti-democratic entrenchment. Turning to family courts, an essay by Professors Tonya Brito and Daanika Gordon relays research findings regarding whether legal actors in child support cases understand these cases as problem-solving settings or adversarial encounters — and shows that either orientation can have consequences for litigants and their experience with the legal system. 

Additional essays in the volume discuss state constitutions and institutions. Emeritus Professor Robert Williams argues that the “next stage” of judicial federalism — one that can respond to anti-democratic threats — will depend heavily on structural arguments under state constitutions, not just rights arguments. Professor Richard Briffault offers a structural contribution of his own, describing and analyzing state responses to the Covid-19 pandemic through the lens of the state separation of powers and partisan conflict. And Professors Ganesh Sitaraman and Kevin Stack take on a pressing question of institutional design: are there ways to strengthen U.S. election administration — and fend off partisan threats to it? Their proposal, to make election administration a licensed profession like medicine and law, is sure to generate discussion.

A final set of essays turns to the local level. Professors Carissa Hessick and Rick Su unpack modern conflict over “reform prosecutors” by showing that the legal status of local prosecutors depends on a trio of legal distinctions that vary widely across states and are sometimes blurry within a state — for example, how states allocate power vertically between state and local governments and horizontally across state branches. This variety prevents a stable, shared understanding of prosecutors’ role, either within a state or nationally. Professor Nancy Leong argues that state tort law may provide an underappreciated mechanism of accountability when local governments violate the constitution. She explores how state claims of negligent hiring, training, and supervision may offer an alternative to plaintiffs who cannot recover under the constraints of 42 U.S.C. § 1983. And, taking up a favorite question of my state and local government law students, Professor Nestor Davidson’s essay “Home Rulings” considers why state courts seem to pay little attention to constitutional text and underlying reform movements in their home rule decisions. Davidson argues that greater attention to text and historical context should play a role in modern home rule reform.

I’ll be back soon with a roundup covering scholarship published in the first few months of this year. Thanks for reading, and happy new year 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. You can reach her at seifter [at] wisc [dot] edu (seifter[at]wisc[dot]edu).