Volume 2023, No. 5

PDF link Table of Contents

Special Issue: Public Law in the States

PDF link Foreword

Allie Boldt, Miriam Seifter & Robert Yablon

This year, states have stepped into the spotlight. The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization has focused attention on the state role in defining individual rights, while democracy cases like Moore v. Harper have underscored the important state role in elections. In addition, many high-profile issues are being brought directly to voters through state ballot measures. As state institutions take center stage, state-focused scholarship has never been more timely or important.

PDF link Is Limiting Abortion a Pretext for Oligarchy? Abortion and the Quest to Limit Citizen-Initiated Ballot Rights in Ohio

Jennifer Brunner

In the shadow of a ballot issue attempting to enshrine abortion rights in the Ohio Constitution, a supermajority of the Ohio legislature devised an intervening constitutional amendment which set a special election, despite having outlawed special elections earlier in the year. The intervening question before voters was whether to raise the threshold for constitutional amendments from fifty percent plus one to sixty percent. While the scheme was viewed by many as the supermajority’s way to stop the abortion rights amendment from becoming a constitutional right, there is an argument that using emotionally charged issues such as abortion is a pretext for schemes that would preserve and perpetuate oligarchic power.

PDF link Public Law Litigation and Electoral Time

Zachary D. Clopton & Katherine Shaw

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public and private), such as when they engage in temporal forum shopping between the court before and after judicial elections. Third, state judges may pursue their preferences in light of their own electoral time, such as when they choose to pursue midnight adjudication. This Essay suggests reasons to be concerned with these time-motivated behaviors, especially when they seek to entrench policies and to counteract the results of democratic elections. How courts, policymakers, and the public will respond to these concerns, only time will tell.

PDF link Family Court as Problem Solving?

Tonya L. Brito & Daanika Gordon

Problem-solving courts seek to find new responses to social, human, and legal problems, often through the integration of treatment programs that modify the behavior of litigants. Focusing on child support enforcement proceedings in family court, this Essay asks if legal actors understand these cases as adversarial, non-adversarial, or problem solving. This project draws from original, in-depth qualitative interviews with an array of legal actors— including judges, family court commissioners, child support attorneys, and defense attorneys. Findings reveal that legal actors see both adversarial and non-adversarial features in child support enforcement proceedings. However, as they develop personal and potentially conflicting orientations toward their work, litigants bear the consequences. Legal actors’ suggestion that the adversarial nature of cases can be minimized may deny litigants the opportunity to zealously advocate for their position—either in the form of effective self-representation or by acquiring an attorney. Legal actors’ competing understandings of the problems underlying the nonpayment of support also suggest that litigants do not derive the full benefits of a problem- solving model. Connections to services around job access, educational attainment, expungement, transportation, and other structural issues are irregularly or partially institutionalized. Variation in legal actors’ approaches to these cases may undermine both the rights and protections of the adversarial model and the service provision of the problem-solving model.

PDF link Dobbs, Democracy, and Dysfunction

David Landau & Rosalind Dixon

Few recent decisions of the Supreme Court have received as much popular attention as Dobbs v. Jackson Women’s Health Organization. In this Essay, we focus on one important aspect of the Dobbs decision: its emphatic claim to be returning questions of abortion access to “the people” or to democracy. Dobbs’s invocation of democracy has obvious intuitive appeal, but it is a deeply problematic claim. It ignores systemic distortions in state legislatures caused by gerrymandering and other factors. And more specifically, in the abortion context, it overlooks the very old laws that pre- date Roe and Roe/Casey-era “messaging” bills never thought likely to go into effect—both of which Dobbs has revived across the country. These laws, which often instantiate draconian bans on abortion access, are dubious measures of contemporary public opinion, but they may end up remaining in effect for a long time because of what we call “burdens of inertia” and “blind spots” in state legislative processes. Given these intertwined dysfunctions, Dobbs is far from a pro-democratic decision. Such a claim would be more plausible if (a) issued in a context where the Court was also taking the sources of democratic dysfunction (such as partisan gerrymandering) seriously; and (b) issued in a way that showed sensitivity to the distortions in the democratic process surrounding abortion, many of which were caused by the Court’s own interventions. As well, since the dysfunctions identified on the abortion issue are difficult to eliminate, a decision that took democracy seriously may have required the Court to continue to oversee abortion regulation nationwide with a regime similar to its current approach in Casey—or at the very least to issue a quite different remedy that delayed the effect of overruling Casey, or did so only prospectively, while making clear that existing laws inconsistent with Casey had no force or effect. The hollowness of the celebratory reference to democracy in Dobbs raises the question of whether it was sincere, or instead a cynical fig leaf that threatens to further erode the significance of U.S. democracy.

PDF link From Rights Arguments to Structure Arguments: The Next Stage of the New Judicial Federalism

Robert F. Williams

State constitutions espouse a democracy principle that commits states to political equality, popular sovereignty, and majority rule. This Essay explains state court application of the democracy principle can mitigate several impending threats to elections, including direct attempts to overturn election results as well as efforts to degrade the integrity of elections through bogus audits and harassment of election personnel.

The textual provisions, structural guarantees, and historical developments that inform the principle in each of the fifty states make state constitutional law a significant, if underappreciated, resource for combatting electoral threats.

PDF link States of Emergency: COVID-19 and Separation of Powers in the States

Richard Briffault

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.

PDF link The (Local) Prosecutor

Carissa Byrne Hessick & Rick Su

The rise of the reform prosecutor has led to a backlash. Many states have sought to circumvent the power of reform prosecutors, others to sanction them, and some to replace them with unelected appointees. These efforts have been met with resistance and, in some instances, with legal challenges. Resolving those challenges may prove difficult because local prosecutors straddle three distinct axes within state governments: the horizontal divide between its branches, the vertical divide between the state government and its local subdivisions, and the constitutional divide between constitutional and statutory offices. This Essay exposes the significant state variation in the legal classification of prosecutors along these divides, and it explains how that variation not only complicates the legal status of prosecutors within any particular state, but also prevents the formation of a shared understanding of what role the local prosecutor plays in state government. Such an understanding is of increasing importance as the enormous discretion delegated to prosecutors and the deepening partisan divides within states suggest that intense battles over the role of the prosecutor are likely to continue.

PDF link Constitutional Accountability through State Tort Law

Nancy Leong

When local governments violate the Constitution, plaintiffs traditionally seek recourse under 42 U.S.C. § 1983. But success in Section 1983 litigation against municipalities has become increasingly elusive for plaintiffs. Under Monell v. Department of Social Services, a plaintiff must show that a municipal “policy or custom” caused the violation of their constitutional rights. This stringent requirement, and its subsequent interpretation by the Supreme Court, has resulted in virtually complete municipal immunity.

Given the difficulty of recovering under Section 1983, commentators have recently considered whether state law mechanisms can provide an alternative avenue for constitutional enforcement. Can state law effectively substitute for Section 1983 liability by holding local governments accountable for violations of constitutional rights? Possible state law mechanisms include state constitutions, implied rights of action under state law, and state legislation creating a Section 1983 analog.

While each of these alternatives holds some promise for civil rights litigators, this Essay takes a different approach by examining state tort alternatives to Monell liability.

PDF link Home Rulings

Nestor M. Davidson

Home rule developed through nearly a century and a half of popular reform aimed at devolving legal authority, leaving a legacy of detailed constitutional provisions in many states. State courts, however, can interpret these provisions as a relatively unconstrained instrumental and normative exercise in constitutional common law, reflexively valorizing state authority in the process. Home rule jurisprudence carries an irreducible element of judicial discretion, but this Essay argues that paying insufficient attention to constitutional text—read in the context of the reform movements that help shape the adoption of those home rule provisions—undermines popular sovereignty and risks ossifying the institutional flexibility of state constitutional structure. These concerns are all the more salient at a moment of renewed interest in home rule reform.

PDF link Election Administration as a Licensed Profession

Ganesh Sitaraman & Kevin M. Stack

This Essay argues that election administrators should be subject to a professional licensing regime, much like licensing in medicine and law. Making election administration a licensed profession would not only expand requirements for training, but also enhance the professional identification of these officials, reinforcing norms of integrity and impartiality. By raising barriers to entry, licensing would make it more costly for partisans to obtain these offices. Licensing could also improve public confidence in the professionalism of election administration. Such a reform meets our moment. While many states have increased training requirements for election administrators, significant gaps remain. Moreover, existing reforms to election administration—ranging from creating nonpartisan structures to disclosing more information to shame outliers—have either stalled or been too indirect to confront the rising partisan challenges election administrators face. The Essay concludes with a case study illustrating how such a licensing regime could be implemented in Michigan.

PDF link Our Federalism and Our National Democracy: Complements or Foes?

Aziz Z. Huq

This Essay reflects on the relationship between “federalism” and “national democracy.” More specifically, it considers the way in which the operation of formal state institutions can change the quality of national bodies necessary to democratic politics. State-level action can reduce the quality of national democracy even if it is motivated by national partisan forces. For example, state-level instruments can influence the possibility that national institutions either do or do not experience capture by minority factions, and are instead capable of roughly tracking the ebb and flow of majoritarian preferences over time. Without state institutions, national actors would lack instruments to achieve such certain anti- democratic effects. The resulting descriptive taxonomy illustrates the ways by which state institutions can serve as vehicles for democratic backsliding in the operation of national representative institutions. As such, it provides a cautionary analysis of state institutions having a net-negative aggregate effect on the quality of a nation’s democracy.