Law Commons^™

Takings Federalization, Gerald S. Dickinson

Articles

Federal constitutional law exerts an outsized role and influence over state constitutional law. In takings, Supreme Court jurisprudence has dominated state court interpretations of analogous state constitutional takings provisions. This does not mean, however, that the Supreme Court always leads and the state courts always follow. At times, the opposite is true. There is, indeed, an underappreciated and under addressed role reversal in which the Supreme Court follows the lead of state courts. State takings doctrines have, on limited occasions, influenced federal takings jurisprudence. This federalization of takings is a distinct feature of judicial dual sovereignty where the Supreme Court …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

Professor Williams And The Education Debates In State Constitutional Law, Scott R. Bauries

Law Faculty Scholarly Articles

Professor Robert "Bob" Williams, whom The Honorable Jeffrey Sutton once aptly referred to as the "Dean of State Constitutional Law," has announced a well-earned retirement, leaving the world of state constitutional law teaching and scholarship without its most prominent and influential intellectual voice. Although it is clear based on mere citations to Professor William's work that he has influenced nearly every debate - and every scholar - in state constitutional law, this Essay contribution to the Festschrift in Professor William's honor outlines two strands of Professor William's work that have greatly influenced my own work.

Principles Of Home Rule For The Twenty-First Century, Richard Briffault, Nestor M. Davidson, Paul A. Diller, Sarah Fox, Laurie Reynolds, Erin A. Scharff, Richard Schragger, Rick Su

Faculty Scholarship

The National League of Cities’ “Principles of Home Rule for the Twenty-First Century” updates the American Municipal Association’s 1953 “Model Constitutional Provisions for Municipal Home Rule.” The AMA approach was widely adopted, but those provisions are now over 65 years old and intervening social, demographic, economic, and political changes necessitates a new approach to the legal structure of state-local relations. The NLC’s approach is organized around four basic principles, which are cashed-out in a model constitutional home rule provision, with commentary. The first principle states that a state’s law of home rule should provide local governments the full capacity to …

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

The Intriguing Federalist Future Of Reproductive Rights, Scott A. Moss, Douglas M. Raines

Publications

As the decline of Roe v. Wade inspires renewed efforts to restrict federal constitutional abortion rights, the serious shortcomings of abortion rights advocates' strategies for preserving such rights will become increasingly apparent. Continued reliance on Roe is likely to fail with an increasingly unsympathetic Supreme Court. Even abortion rights supporters have begun to criticize the decision for weak reasoning, which is difficult to remedy at this late stage of federal abortion jurisprudence. Moreover, although autonomy and gender equality arguments for abortion rights would improve upon Roe's privacy rationale, such arguments would require abrogating substantial precedent and are, therefore, of limited …

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

New Life For The ‘Criteria Tests’ In State Constitutional Jurisprudence: ‘Gunwall Is Dead—Long Live Gunwall”, Hugh D. Spitzer

Articles

Outlines the develoment of state constitutional jurisprudence in Washington State between 1986 and 2006. Provides a general theory of state constitutional analysis, and recommends retention of the "creteria" approach to application of state constitutions, primarily as an interpretive tool.

The New Frontier Of State Constitutional Law, Jim Rossi, James A. Gardner

Vanderbilt Law School Faculty Publications

In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized …

Bearing Arms In Washington State, Hugh D. Spitzer

Articles

Article I, Section 24 of the Washington State Constitution directly affects two "hot topics" today: first, the increase in the carrying of weapons by the citizenry (particularly concealed weapons, with or without permits) and, second, the increase in "citizen militias" in various parts of the state. Article I, Section 24 also presents interesting issues from a pure state-constitutional-law standpoint, because it represents one of the striking characteristics of state constitutions: these basic documents of civil society for each state represent centuries of buildup and accretion. State constitutional provisions can often be analyzed in terms of layering. In preparing a state …

Interstate Dialogue In State Constitutional Law, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.

Judicial Review In Local Government Law: A Reappraisal, Harold H. Bruff

Publications

No abstract provided.