Modeling Judicial Federalism: Predictors of State Court Protections of Defendants' Rights Under State Constitutions, 1969-1989

Drawing on data collected by Barry Latzer and using a logisticregression model that employs pooled time-series, this articletests a variety of factors for their impact on state high courtdecisions to diverge from U.S. Supreme Court criminal proceduredoctrines from 1969 to 1989. Several factors predict the developmentof independent state doctrines protective of civil liberties,including popular-vote retention elections and longer termsof office for state court justices, high court reputations,state wealth, and regional distinctions (with western courtsmost likely to advance individual rights). This study representsonly a small step in understanding an area of judicial behaviorthat has been long ignored in the political science literature.     

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.     

Class, State and Democracy: Laski, Miliband and the Search for a Synthesis

Socialism comprises several distinct traditions but, for much of the twentieth century, it also struggled to define its position in relation both to the revolutionary Marxist claim that all forms of capitalist state were class dictatorships and to the liberal concept of democracy. This article accepts that there are contradictions between the Marxist and liberal positions, but suggests that these can be embraced positively by socialists. It explores the ideas of Harold Laski and Ralph Miliband to demonstrate this. There were some similarities between the two theorists, but their trajectories differed. Laski began with a radical pluralist perspective into which he later attempted to incorporate a Marxist critique of capitalism, while Miliband started as a Marxist but increasingly sought to integrate strands of thought associated with liberalism into his outlook. The article explains why the positions of both thinkers evolved over time and the comparative discussion highlights their insights into some key problems in socialist political theory. More generally, it concludes that both the liberal and Marxist traditions are a necessary part of socialist thought on class, democracy and the state.     

Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases

I analyze freedom of religion case law from the European Court of Human Rights (ECHR), arguing that the ECHR has been inconsistent and deferential to state governments. To account for this phenomenon, I consider two theoretical frameworks. First, I ask whether the religious affiliation of applicants matters when it comes to judges’ willingness to decide in their favor. Second, I consider whether ECHR judges are influenced by the preferences of the states that nominated them. Employing logistic regression analysis on an original dataset of 538 judge votes on 70 freedom of religion cases, I find that Muslim applicants are substantially less likely to receive favorable judge votes, and that judges are more likely to vote in favor of the states that nominated them. Additionally, I find that West European states are especially likely to receive favorable rulings, even when controlling for differences in state protections of religious liberty.     

Recent Trends in State Spending: Patterns, Problems, Prospects

After more than three decades of institutional and fiscal capacity-building,the debate over the states' commitment to their citizens andlocal governments continues. Federal domestic disengagement,the national recession, taxpayer unrest, and anti-incumbentsentiments, among other factors, have raised concerns aboutthe states' performance. This article reviews recent trendsin state spending for public education, Medicaid, corrections,AFDC, and local aid to discern changes and assess their implicationsfor the states' role and record.     

The European Welfare State: Golden Achievements,Silver Prospects

For the welfare state the last 30 years have witnessed a turbulent transition from the ‘Golden Age’ of expansion to a ‘Silver Age’ of permanent austerity. This shift has been the result of external pressures and of internal transformations of domestic economies and social structures. Permanent austerity has entailed incisive institutional adaptations and has been accompanied by a ‘new politics’, centred on a plurality of ‘blame avoidance’ strategies on the side of parties and governments. The article summarises and discusses the main factual developments since the mid-1970s but it also surveys the main strands of academic debates on both the expansion and the crisis phases. The author argues that comparative welfare state research has been one of the liveliest fields of political economy – a field marked by important analytical and theoretical advances and by the accumulation of relevant and systematic empirical knowledge about a key institution of the European political landscape.     

The Diffusion of Executive Power in American State Constitutions: Tenure and Tenure Limitations

The comparative study of the development of state constitutionalprovisions concerning executive power, within the frameworkof diffusion theory, has value for a general understanding ofexecutive authority in contemporary America. American chiefexecutive offices were designed with a complex package of powersand limits, all viewed by their creators as mutually contingentand in delicate balance. Since the creation of each executiveoffice, constitutional development has evidenced a "decouplingeffect," that is, in different eras, discrete powers and limits,considered individually, were altered in response to unfoldingevents and changing ideological premises, generally with theeffect of enhancing executive power. This pattern is evidentin the development of the current norm in constitutional provisionsregarding tenure and tenure limitation, the four-year term andthe two-term limit. In this development, there has been evidenceof mutual influence between the states and the national governmentwith some evidence, too, of regional patterns of resistanceto change (in New England). Somewhat surprisingly for thosewhose study of executive power is limited to the Presidency,when a comparative approach is employed, the post-Civil Warperiod emerges as a crucial time of executive strengtheningin America.     

The Rehnquist Court and Federal Preemption: In Search of a Theory

In the 1980s, the U. S. Supreme Court was expected to becomemore solicitous of "states' rights" and to reconsider doctrinesof federal preemption of state and local laws. Those expectationswere built on the Court's ruling in National League of Citiesv. Usery and reinforced by the Reagan administration's rhetoricand Court appointments. The record ofthe Rehnquist Court, however,demonstrates that it has backed away from vigorously enforcingthe Tenth Amendment and has erected only minor constitutionalbarriers, as in New York v. United States, to the Congress'power over the states. Moreover, the Court has not retreatedfrom finding implied statutory preemptions or from imposingits own dormant-commerce clause power on the states. The articleconcludes by considering a number of explanations for the Court'srecord and rulings on federal preemption.     

Freedom of Expression and National Security

Society - The threat from terror and religious extremism has seen liberal democracies adopt a raft of measures are intended to restrict freedom of expression. Yet very little focus has been spent...     

Metropolitan Governance: Voter Support and State Legislative Prospects

With increased public attention to the problems in both centralcities and suburban areas, the feasibility of metropolitan governanceis being considered again. Myron Orfield's work on regionalcooperation in Minneapolis-St. Paul has suggested that statelegislative action can be used to achieve that outcome. However,state legislators are unlikely to promote regional policiesunless they have some evidence their constituents support them.This article uses election data from California propositionsto test the connection that Orfield asserts between demographiccomposition of an area and voter support for regional issues.The data suggest several shortcomings of his model, includingthat race or ethnicity and the diversity of an area substantiallyaffect the outcome in ways he did not consider.     

State Taxation of Interstate Sales: Enforcement Problems and Prospects

In their search for additional revenues, state governments in recent years have turned greater attention to collection of use taxes. Growth in interstate mail order sales has vastly increased the potential yield from use taxes, but Supreme Court decisions have limited the ability of states to effectively collect the tax. States have attempted to overcome enforcement barriers by joining in interstate use tax compliance compacts, and promoting congressional legislation to overcome constitutional prohibitions.