Explaining State High-Courts' Selective Use of State Constitutions

Although state constitutions offer substantial policy-makingopportunities, state courts are reluctant to base decisionson independent state constitutional law. Using state high-courtjudicial review decisions from 1981 to 1985, we tested a modelpredicting countermajoritarian state-law rulings. Legal andpolitical variables best predicted state constitutional decisions.Intragovernmental conflicts were particularly likely to resultin state-law decisions, while courts were especially reluctantto base civil liberties decisions on state constitutions. Casesbrought by government officials were likely to be decided onstate constitutional principles; state-law decisions were alsolikely to emerge from conservative states and states with tradilionalisticpolitical cultures. Although these latter findings stand apartfrom previous research connecting some forms of judicial activismto liberal political environments, they seem consistent withthe element of American conservatism seen particularly in traditionalisticstates (in the South and Southwest) demanding protection ofstate autonomy in the realms of policy development historicallyleft to the states.     

U.S. Prosecution of State and Local Officials for Political Corruption: Is the Bureaucracy Out of Control in a High-Stakes Operation Involving the Constitutional System?

Perhaps the most serious and disabling federal intrusion ofrecent years into the independent political status of stateand local governments has been actions by the U.S. governmentto prosecute elected state and local officials and their closeassociates for local political corruption. In 1986 U.S. Attorneysin New York, Boston, District of Columbia, Pennsylvania, andelsewhere pursued such investigations and prosecutions withunusual vigor. These activities have a recent genesis—since1974—and they are basically unauthorized, in importantrespects out of control, and overall questionable in terms ofthe federal nature of our constitutional system. These findingsare supported by data from the Public Integrity Section of theCriminal Division and the Office for U.S. Attorneys, both inthe Department of Justice, and by opinions of U.S. courts, legislativehistories of bills and statutes, and sources on criminal lawand political corruption.     

The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court

Modern liberal democracies typically depend on courts with the power of constitutional review to ensure that elected officials do not breach their constitutional obligations. The efficacy of this review, however, can depend on the public observing such breaches. One resource available to many of the world's constitutional courts to influence the public's ability to do so is public oral hearings. Drawing on the comparative judicial literature on separation of powers, public awareness, and noncompliance, I develop a formal model of public oral hearings. The model provides empirical implications for when a court will hold public oral hearings and how hearings correspond to a court's willingness to rule against elected officials. An empirical analysis of hearings at the German Constitutional Court supports the model's prediction that courts use hearings as a resource to address potential noncompliance.     

The Church Committee and a new era of intelligence oversight

Thirty years ago, the Church Committee completed what was and still is the most exhaustive look at any government's secret intelligence agencies. The Committee showed that in times of crisis, even constitutional democracies are likely to violate their laws and forget their values. In this reflection, the Committee's Chief Counsel states that by examining the full record over time, the Committee found that it was insufficient to blame abuses solely on intelligence agencies. Ultimate responsibility was properly fixed with the presidents, attorneys general, and other high executive branch officials. Seven general lessons, including the danger of excess secrecy, are drawn from his experience. These lessons are valuable for the present struggle with terrorism.     

State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

The Burger Court and Younger Abstention: Enhancing the Role of State Courts in Constitutional Adjudication

An important determinant of federal balance is the degree ofstate court authority to decide federal constitutional issues.This study traces the development of the Younger abstentiondoctrine, one of the primary vehicles by which the Burger Courtrestricted federal court jurisdiction and enhanced the authorityof state courts in constitutional adjudication. The Youngerdoctrine was adopted by the Supreme Court in 1971 for reasonsof comity and equitable restraint. Throughout the Burger Courtyears, Younger was expanded from an initial denial of jurisdictionto litigants seeking injunctive relief in state criminal proceedings,to litigants in cases "akin" to criminal proceedings, and thento litigants in cases "important to state interests." By relyingon Younger abstention, the Burger Court has reduced the roleof the federal courts as the primary enforcement of U.S. constitutionalrights.     

The Judicial Theory of a Reasonable Public Servant

Contemporary theory of the constitutionally reasonable public servant, established by the U.S. Supreme Court in 1982 in Harlow v. Fitzgerald, is measured in reference to clearly established constitutional or statutory rights that a reasonable person would have known. In this article, the author seeks to elucidate the evolving contours of the objective reasonableness standard and examines how federal courts have applied it. To gain a firsthand impression of how public officials challenged in federal courts are measuring up to the objective reasonableness standard, the author provides a snapshot of 449 recent court cases selected from two federal circuits, the Eighth and the District of Columbia circuits. He concludes that public officials in these two circuits have fared very well under the standard of objective reasonableness. The flip side is that aggrieved individual citizens must carry a heavy burden to protect their constitutional rights.     

Into the Words: Using Statutory Text to Explore the Impact of Federal Courts on State Policy Diffusion

I examine the impact federal appellate courts have on state policy diffusion through the use of computational text analysis. Using a dyadic framework, I model the impact courts have on the decision to adopt a policy and, if adopted, how much text to borrow directly from another state's preexisting law. A court decision ruling a statute unconstitutional can generate up to a 28% relative reduction in the probability of adoption, and a ruling of constitutionality can both increase the probability of adoption by a similar amount and more than double the amount of borrowed text. These findings shed light on how states learn from one another.     

State Attorneys General, Entrepreneurship, and Consumer Protection in the New Federalism

Although many scholars have acknowledged the important roleof states in regulatory enforcement, few have studied the decisionsof the state attorneys general to pursue particular multi-statelitigation actions. State attorneys general act as politicalentrepreneurs because they aggressively seek out market failuresin society to justify stronger regulation. Their motivationto serve the public comes from the fact that they are electedin 43 states and the office is often used as a springboard intohigher political office. A probit model analyzing the decisionto join seven high-profile multi-state enforcement actions thatlook place between 1996 and 1998 reveals that state citizenideology and the institutional structure of the office havethe strongest effects on the decision to join a case.     

Retrofitting the Administrative State to the Constitution: Congress and the Judiciary's Twentieth-Century Progress

One of the twentieth century's "big questions" for United States government has been how best to retrofit, or integrate, the full-fledged federal administrative state into the constitutional scheme. The public administration orthodoxy initially advocated placing the executive branch almost entirely under presidential control; Congress and the federal judiciary responded otherwise. Congress decided to treat the agencies as its extensions for legislative functions and to supervise them more closely. The courts developed an elaborate framework for imposing constitutional rights, values, and reasoning on public administration practice. As the challenge of retrofitting continues into the twenty-first century, public administrators might profitably play a larger role in the constitutional discourse regarding the administrative state's place in constitutional government.     

On the reputation of state supreme courts

A state supreme court, in making and justifying choices, uses a variety of sources of information and authority—its own precedents, scholarly commentaries, articles in law reviews, encyclopedias, restatements, and so forth. Quite often a state supreme court appeals to the wisdom or rejects the lack of it in the decision of a sister court in order to arrive at or buttress reasoning in a particularly problematic case. These citations—construed as derogation or deference—yield very handy and nonreactive indicators of hierarchies of prestige between and among the highest appellate courts of the several states. In this paper, I develop a simple and general measure of judicial reputation, present evidence on the hierarchy of state supreme courts as of 1975, show how this ranking has changed in the last 50 years, and examine competing and sometimes complementary explanations of judicial prestige. Taken together, social diversity, judicial professionalism, political ideology, and the size of case load provide an impressive explanation of the reputation of state supreme courts.     

Constitutional courts as arbiters of post-conflict territorial self-government: Bosnia and Macedonia

Constitutional and supreme courts frequently end up examining the political and legal questions at the heart of peace agreements and post-conflict constitutions. Where a peace agreement has included territorial self-government (TSG) provisions courts are often endowed with the capacity to adjudicate disputes between state and sub-state levels of government. The effectiveness of courts in fulfilling this role as not been comprehensively examined. This article fills this important gap examining whether the results of existing research on the role of constitutional and supreme courts in resolving disputes in traditional federalism also apply in these particular circumstances. It finds that where TSG is used as a conflict management mechanism judicial review can have centralizing tendencies if this occurs it can largely be attributed to the processes used to select though the devolutionary multinational nature of the states is also relevant.     

Federal Court Responses to State and Local Claims of "Undue Burden" in Complying with The Americans with Disabilities Act

Are federal courts sympathetic to local and state officials'cost concerns, particularly when it comes to meeting the requirementsof the Americans with Disabilities Act? This is the fundamentalquery taken up by this analysis. After examining twenty-eightfederal ADA cases where state and local officials have goneto court claiming that complying with this civil rights measurewould be unduly burdensome, this study comes up with mixed findings.In some cases, the courts have been sensitive to cost concernsbut, in others, they have not. Despite these inconclusive findings,this study does cast some light on what state and local officialsmust do if they expect federal courts to be sensitive to theirconcerns.     

State Government Influence in the National Policy Process: Lessons from the 104th Congress

During the last several decades, state officials increasinglyconcluded that their interests are not adequately representedin national policymaking and sought to increase their influencethrough the constitutional amendment process, the federal judiciary,and the political process. This article evaluates the extentto which these institutional mechanisms were effective in advancingstate interests during the 104th Congress. United States Constitutionalamendments were improbable and ineffective devices. Litigationwas slightly more successful, though it provided an uncertainsource of long-term security for state interests. Efforts towork through the political process, either through securingthe passage of legislation that increases congressional responsivenessor by engaging in direct lobbying, were moderately effectiveunder certain conditions.     

Interstate Cooperation: The Roles of the State Attorneys General

State attorneys general are major participants in intergovernmentalrelations in the United States. This article presents six modelsthat may explain their interactions with each other and teststhree hypotheses associated with two models. Their interactionscomport with the cooperative and the innovation-diffusion models.Only limited evidence supports the hostility model and its associatedhypothesis. No evidence supports the mercantilist and competitivemodels. The response from only one attorney general suggestedhis actions are based on the benign neglect model. The conclusionis drawn that the cooperative activities of the attorneys generalhave produced a more harmonious federal system in terms of enforcementpolicies.     

State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement

Most state constitutions contain detailed restrictions on thelegislative process. Violations of some of these restrictions(e.g., single-subject requirements) are reflected on the faceof a final enactment. Other violations (e.g., alteration ofa bill to change its original purpose) are not evident in thefinal enactment, but require investigation of the legislativeprocess. State courts have developed a variety of approachesto these second types of violations, from excluding all evidencebeyond the enactment to permitting any evidence of constitutionalviolations. The Pennsylvania Abortion Control Act was passedin apparent violation of both types of constitutional restrictions.The legislative debates reflected legislators' attitudes aboutsuch restrictions, but the Pennsylvania courts refuse to enforcethem. After surveying other judicial approaches, the articlediscusses the legislative and executive obligation to followconstitutional restrictions, regardless of judicial enforcement.The article then advocates increased judicial enforcement, whilemaintaining proper deference to the legislature.     

Judicial Federalilsm and Equality Guarantees in State Supreme Courts

The new judicial federalism emphasizes state court relianceon state constitutional grounds for the enhanced protectionof individual rights. Commentary in the legal literature givesthe impression of much state court activism in this area. However,a quantitative analysis of 2,286 equal protection cases decidedby state supreme courts between 1975 and 1984 shows much lowerlevels of the exclusive use of state constitutions. The dataalso reveal significant regional variations in the nature ofequal protection cases filed, the types of alleged discrimination,the use of independent and adequate state grounds, and the frequencyof judicial invalidation of state action. These variations areexplored in terms of political culture, the institutional featuresof the state judiciary, and the content of state bills of rights.     

NEW FEDERALISM, OLD REMEDIES, AND CORRECTIONS POLICYMAKING

Corrections litigation is changing, but new case law does not authorize a wholesale cutback of prisoner constitutional rights. Supreme Court cases urge a return to traditional compensatory damages as the remedy for unconstitutional acts and conditions. Monitoring of state correctional performance by federal courts is disfavored. The author believes that basic rights of prisoners will remain protected, but that systematic planning and exemplary programs will erode. Under the money damages model, legal reform should thus urge waiver of the state sovereign immunity provided by the Eleventh Amendment.