Volume 2022, No. 5

PDF link Table of Contents

Special Issue: Interpretation in the States

PDF link  Foreword

by Allie Boldt, Miriam Seifter, & Robert Yablon

Should state courts apply prevailing federal methodologies? Or, alternatively, does the state context call for different approaches?  This Special Issue explores these questions, as well as different ways of thinking about interpretation and the role of state courts more broadly.

PDF link State Shadow Dockets

by Rebecca Frank Dallet & Matt Woleske

While many scholars have focused their attention on the Supreme Court, state shadow dockets have largely avoided scrutiny. This Essay fills that gap and demonstrates how many of the criticisms of the Supreme Court’s shadow docket apply with even greater force to many different states’ shadow dockets. We then draw on best practices from other state supreme courts and propose reforms to the Supreme Court’s shadow docket to improve transparency and the quality of decision-making on state shadow dockets.

PDF link Modified Textualism in Wisconsin: A Case Study

by Anuj C. Desai

In this Essay, I use the structure of the Kalal methodology to make a different, but related, point: in many difficult cases, the analysis Kalal’s modified textualism asks courts to perform misses an important aspect of statutory interpretation, the role of legal principles.

PDF link The Textual Canons in Contracts Cases: A Preliminary Study

by Ethan J. Lieb

This Essay is a first effort to explore how linguistic canons function in contract cases. Most lawyers know about ejusdem generis, expressio unius, and noscitur a sociis from their work in statutory interpretation, but no one has attempted any systematic inquiry into how these canons figure in contract interpretation.

PDF link Improving (and Avoiding) Interstate Interpretive Encounters

by Aaron-Andrew P. Bruhl

I largely agree that states must honor other states’ interpretive methods, but this Essay seeks to advance our understanding in three ways. First, the Essay grapples with nuances involving whether enacting states mean for their methods—and which aspects of them—to apply in other courts. Second, it addresses situations in which a forum state may have legitimate reasons to resist applying sister-state methodology to a sister-state statute. In such circumstances of true conflict, the best way to honor the sister state may be to avoid adjudicating claims under its law altogether rather than to apply its substantive law in a compromised form. Third, the Essay considers the potential role of the federal courts in modeling and encouraging compliance with the general duty to apply sister-state methodology.

PDF link Use of Convention History in State Constitutional Law 

by Maureen E. Brady

This Essay begins to examine the records that surrounded the creation of state constitutions, considering their reliability as sources, their emergence as interpretive aids, and their widespread use by judges. It focuses in particular on material from state constitutional conventions: the published journals, debates, and proceedings that purport to chronicle the day-to-day activities of a state constitution’s drafters.

PDF link Preemption, Commandeering, and the Indian Child Welfare Act

by Matthew L.M. Fletcher & Randall F. Khalil

We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state law without unlawfully commandeering the states’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.

PDF link Textualism, Judicial Supremacy, and the Independent State Legislature Theory

by Leah M. Litman & Katherine Shaw

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections.

PDF link Interpreting Initiatives Sociologically

by Glen Staszewski

While prior efforts to instantiate sociological jurisprudence have foundered on legitimate concerns regarding the judiciary’s limited institutional competence and questionable democratic pedigree, this Essay contends that those concerns could be counteracted in the initiative context by assigning decision-making authority over interpretive disputes to a deliberative jury.

PDF link Polarization, Nationalization, and the Constitutional Politics of Recent State Supreme Court Elections

by Jane S. Schacter

Elections have the capacity to engage voters more directly with constitutional law and legal institutions than anything on the federal level. At the same time, as Dobbs illustrates, what happens on the federal level can profoundly affect and shape these elections. With this context in mind, I will explore the question of what increasingly polarized and nationalized recent state supreme court elections look like and, more specifically, how partisanship shapes the electoral environment in court campaigns.

PDF link Countering the New Election Subversion: The Democracy Principle and the Role of State Courts

by Jessica Bulman-Pozen & Miriam Seifter

This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ founding documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we explain how state courts might apply the democracy principle to address the new election subversion.