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2010

Arthur Leavens

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Prophylactic Rules And State Constitutionalism, Arthur Leavens Jan 2010

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Arthur Leavens

The article examines the conceptual legitimacy of state-law expansion of federal constitutional prophylactic rules. Owing to the nature and purpose of prophylactic rules – to guide lower courts in their implementation of the Constitution’s broader, more indeterminate principles – the article argues that such rules (while surely of constitutional status) are inherently subject to revision where necessary to correct a lack of fit with their respective underlying principles. If a state concludes that a prophylactic rule announced by the Supreme Court under-protects the constitutional principle that it is meant to implement, the article argues that it is conceptually appropriate for the ...