Volume 2021, No. 5

PDF linkTable of Contents


Special Issue: Public Law in the States

PDF linkForeword

by Allie Boldt, Miriam Seifter, & Robert Yablon

Although states sit at the heart of the American democratic system, academic and popular discourse often overlook state-level public law. The lion’s share of attention, instead, goes to the federal government. In this Special Issue, the states take center stage. The essays in this collection explore issues relating to subnational democracy, government, and institutions. These essays were first presented at a conference entitled “Public Law in the States,” which took place in June 2021. The conference was the inaugural academic convening of the new State Democracy Research Initiative at the University of Wisconsin Law School. Like this Special Issue, the Initiative aims to contribute to the vitality of democracy at the state level through research and learning focused on the states.

PDF linkState-Local Litigation Conflicts

by Margaret H. Lemos

Municipal litigation is on the rise. Commentators have championed affirmative litigation by local governments as a means of vindicating citizens’ rights and interests. Meanwhile, the Chamber of Commerce has identified municipal litigation as a pressing threat to business and proposed a laundry list of mechanisms state legislatures could use to rein in, hobble, or outright prohibit local suits. Such opposition isn’t surprising. The Chamber has targeted litigation by state attorneys general (AGs), too, and from a defense-side perspective local litigation must look like state litigation on steroids: tens of thousands of potential plaintiffs, often using private lawyers to raise claims that may not be available to private parties.

PDF linkEnhanced State Constitutional Rights: Interpreting Two or More Provisions Together

by Robert F. Williams

There are many unique interpretation issues and techniques in state constitutional law that do not, or only rarely, arise under the different history and text of the United States Constitution. One such technique that has not been explored in the literature is applying two or more state constitutional provisions together as “enhancing” each other. There are some important examples of this approach by state supreme courts. In this short Essay I propose to make a preliminary analysis of these cases.

PDF linkFederalism and Federal Rights Minimalism: Overlooked Effects on State Court Education Litigation in Wisconsin

by Helen Hershkoff & Nathan D. Yaffe

In 1973, the U.S. Supreme Court in San Antonio Independent School District v. Rodriguez held that education is not a fundamental right under the Fourteenth Amendment and that the Equal Protection Clause did not bar the state of Texas from using a system of school funding that produced radically unequal educational opportunities for students in low-wealth communities relative to those in more affluent districts. Federal defeat is said to have incentivized advocates seeking to improve and equalize public schooling to turn in their litigation efforts from federal court to state courts and from the Federal Constitution to state constitutions, which contain explicit provisions for education. Four decades later, an emergent scholarly movement now celebrates—or, at least, gives two cheers to—the Supreme Court’s rejection of education as an unenumerated federal constitutional right on the view that it opened up space for local solutions and increased self-governance, pointing to the dozens of state court decisions that have recognized or sought to enforce state constitutional rights to education not available under federal law. This Essay sounds a cautionary note about today’s “New ‘New Judicial Federalism,’” questioning its descriptive foundation and its normative conclusions.

PDF linkZombie State Constitutional Provisions

by Maureen E. Brady

On November 3, 2020, Alabama voters approved the opaquely named “Authorize Legislature to Recompile the State Constitution Measure.” As described by the state’s Fair Ballot Commission, the ballot measure would permit the Alabama legislature to “(1) remove racist language” and “(2) remove language that is repeated or no longer applies,” among other things. The racist language in question? In one portion, the constitution still prescribed that “[s]eparate schools shall be provided for white and colored children.” Another section, though technically repealed by another amendment in 2000, remained in place memorializing that the “[l]egislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.” Though both these provisions were deemed unenforceable under the Federal Constitution following blockbuster Supreme Court decisions, the provisions remained in the state constitutions, undisturbed. And even in 2020, the measure to eliminate this language passed only by a margin of 67% to 33%. Proposals to remove the language had twice failed since the year 2000—although the vocal opponents of those proposals objected allegedly not to preserve the language itself but rather on the grounds that revising the language would have various unintended consequences for taxation or school funding.

PDF linkFederalism and the Limits of Subnational Political Heterogeneity

by James A. Gardner

With an epidemic of democratic backsliding now afflicting many of the world’s democracies, including the United States, some scholars have suggested that federalism might serve as a useful defense for liberal democracy by impeding the ability of an authoritarian central government to stamp it out at the subnational level. In this Essay, I dispute that contention. An examination of both federal theory on one hand and the behavior and tactics of central control employed by ancient and early modern empires on the other leads to the conclusion that the protective value of federalism against the effects of national authoritarianism is indeterminate and depends upon a host of contingencies. These include the particular structure of the federal state in question; the specific pathways of influence available to subnational units to protect their autonomy in any given federal structure; and the goals, motivations, and determination of governments and populations at both levels.

PDF linkMeasuring State Capture

by Pamela J. Clouser McCann, Douglas M. Spencer, & Abby K. Wood

How do we know when an executive branch actor is captured or is at risk of capture? And what is the risk that other branches of government could be captured? In this project, we offer a critical review of regulatory—or industry-related—capture that we use to build a concept of state capture that extends beyond agency-specific accounts and incorporates both the structures and processes of governing, while centering our examination on the public. We use state-level data on campaign finance, lobbying, industry size, ethics, and transparency to measure the degree to which the fifty state executive, legislative, and judicial branches are at risk of capture by the dominant industries in the state. We then test our measures of risk against policies that departed so far from public opinion that scholars suspect capture may have been at play. Finally, we discuss judicial review of agency action in the face of suspected capture. Courts should use a heightened level of scrutiny where risk of capture is high. However, we also point out that elected judges—particularly those who run for re-election—are vulnerable to the same pressures that legislators endure when it comes to the risk of influence via campaign finance. In those cases in which a judge’s campaign financing is dominated by the industry affected by the agency action or statute, the judge should recuse. And policymakers concerned about judicial capture should create a narrow presumption for litigants to remove the case to federal court.

PDF linkTournament Elections with Round-Robin Primaries: A Sports Analogy for Electoral Reform

by Edward B. Foley

Round-robin voting uses ranked-choice ballots but differs from instant-runoff voting in how to calculate which candidates are most preferred by a majority of voters. Like a round-robin sports competition, round-robin voting determines how each candidate fares against every other candidate one-on-one, tallying the number of wins and losses for each candidate in these one-on-one matchups. If necessary to break a tie in these win-loss records, round-robin voting looks to the total number of votes cast for and against each candidate in all of the one-on-one matchups—just as round-robin sports tournaments look to an equivalent total point differential statistic to break ties. When used in a primary election as the method to identify the top two candidates deserving to compete head-to-head as finalists in the general election, comparable to the use of round-robin competition as the preliminary stage of a sports tournament, round-robin voting is the electoral system best able to implement the democratic idea of majority rule.

PDF linkLegislative Administration

by Maria Ponomarenko

Administrative law and scholarship are built upon a set of assumptions about the institutions that comprise the administrative state. Existing scholarship has focused almost exclusively on federal administrative agencies. As a result, many of the familiar arguments about the role of politics in agency decision-making or the desirability of judicial review are premised on a vision of a sprawling, expert-laden bureaucracy situated within the executive branch. As I argued in Substance and Procedure in Local Administrative Law, many of these assumptions start to break down at the local level, where a great deal of regulatory activity takes place. The local agencies responsible for determining the layout and density of various neighborhoods, or promulgating detailed regulations for local businesses, often look nothing like their federal counterparts. Outside the larger cities, for example, detailed health and land use regulations often are promulgated by all-volunteer boards with varying degrees of relevant expertise. The matters they deal with also tend to be quite a bit less complex. Deference doctrines premised on the inscrutability of federal regulations or on claims of agency expertise may be harder to justify where local agencies are concerned.

PDF linkFederalism in the States: What States Can Teach About Commandeering

by Fred O. Smith, Jr.

While it has been said that the Founders “split the atom of sovereignty” in our federal system, it must never be forgotten that splitting atoms is a risky endeavor. It should be done with caution. And it should be guided by expertise and lessons learned from laboratories of innovation. In America’s federal system, as Justice Louis Brandeis famously observed almost a century ago, states serve as such laboratories. States—individually and as a class—make doctrinal and administrative choices that differ from those of the national government. These include divergent choices about how to deploy interstate federalism and intrastate federalism. In turn, state and local governments teach one another, and the nation as a whole, about the consequences of those diverse choices. This symposium Essay will focus on one area in which federal and state governments have diverged in the administration of federalism: “anticommandeering” doctrine. Whereas federal Tenth Amendment doctrine includes an anticommandeering principle that generally prevents the national government from telling state and local governments how to govern, there is no general anticommandeering principle in the annals of state constitutional cases and law.

PDF linkLocalism All the Way Up: Federalism, State-City Conflict, and the Urban-Rural Divide

by Richard C. Schragger

One characteristic of this age of political polarization is increasing conflict between states and their cities. Pandemic-related regulation has been a recent flashpoint, with governors and mayors at loggerheads over school openings, mask mandates, rent moratoria, and business closures. But conflicts between state and city officials preceded that global emergency. In recent years, state hostility to local policymaking has become its own epidemic, with states preempting, suing, fining, and attacking local officials over a range of policies. These conflicts harken back to an earlier era when state legislatures would adopt “ripper bills” that stripped local officials of their offices and authority. At the same time, secession movements within states are gaining traction, at least rhetorically. The immigrant sanctuary city has been followed by the Second Amendment sanctuary city and, more recently, the rise of pro-life and First Amendment sanctuary cities.

PDF linkExclusionary Zoning’s Confused Defenders

by David Schleicher

In both economic and legal scholarship, a broad consensus has formed that zoning and other land use laws and regulations in our richest and most productive regions have become too strict. Land use laws, in both suburbs and downtowns, have made it too hard to build housing in the areas with the most demand, leading to high prices and excluding many possible migrants. The lack of housing growth in our richest regions has created huge economic losses, as workers cannot move to the regions where they would earn the highest wages, and excessively high prices for renters and home buyers in these areas. Local land use regulations that limit housing growth also contribute substantially to economic inequality, racial and economic segregation, homelessness, and greenhouse gas emissions. Because local governments use land use regulations to exclude, most scholars in the field have called on state governments to take some action to limit local exclusionary zoning. But scholars abhor consensus, no matter how much empirical evidence piles up in favor of it. In the last few years, several legal scholars have written articles challenging the scholarly consensus in favor of zoning reform. This Essay reviews their arguments and finds that the consensus . . . has little to fear.