Law Commons^™

State Constitutional Rights And Democratic Proportionality, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

State constitutional law is in the spotlight. As federal courts retrench on abortion, democracy, and more, state constitutions are defining rights across the nation. Despite intermittent calls for greater attention to state constitutional theory, neither scholars nor courts have provided a comprehensive account of state constitutional rights or a coherent framework for their adjudication. Instead, many state courts import federal interpretive practices that bear little relationship to state constitutions or institutions.

This Article seeks to begin a new conversation about state constitutional adjudication. It first shows how in myriad defining ways state constitutions differ from the U.S. Constitution: They protect …

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’ …

Lawyerless Law Development, Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark, Anna E. Carpenter

Faculty Scholarship

State civil courts are the object of growing scholarly attention converging from two directions: rapidly expanding research regarding lawyerless state civil trial courts, and an increasing volume of voices calling for state supreme courts to serve as a balm for American democracy’s wounds. The challenges of lawyerless trial courts and the potential of state supreme courts converge when considering how law develops in state civil courts. We and others have asserted that law development is not happening in lawyerless courts, at least not in the way that American legal scholars conventionally understand law development. This Essay explores the core theoretical …

The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.