Table of Contents
Foreword
Miriam Seifter, Robert Yablon & Bree Grossi Wilde
Articles
The Role of State Justices in Advancing State Constitutional Law: Some Thoughts from Colorado
Jake Mazeitis & Honorable Melissa Hart
Commentators and jurists alike have long criticized advocates for failing to raise state constitutional claims. As the thinking goes, state courts cannot interpret constitutions sua sponte; advocates need to present judges with compelling arguments in appropriate cases. We agree that advocates are critical to state constitutional development but are sympathetic to the ethical and financial constraints which accompany the choice to pursue an untested legal theory. We propose that state supreme court justices ought to take a more active role in the development of state constitutional law, if only to assure advocates that time spent advancing state constitutional law is not time wasted.
Constitutional and Administrative Innovation Through State Labor Law
Kate Andrias
This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations in state labor law have the potential not only to reshape U.S. labor policy but also to serve as a model for a more democratic approach to administrative governance and constitutional law generally.
Single-Subject Rules and the Nature of State Judicial Power
Chad M. Oldfather
Many state constitutions include “single-subject” rules, which require legislation, ballot initiatives, and/or constitutional amendments to encompass only one subject. These rules are intended to facilitate informed decisionmaking by making it clear to voters what they are voting on, as well as to prohibit practices that leverage one measure’s popularity to assist with the passage of another, such as logrolling and the inclusion of riders. Courts have struggled to enforce these rules, however, due largely to the inherent slipperiness of “subject” as a concept. Commentators have in turn questioned judicial intervention based largely on doubts about whether the rules can be implemented in a principled and consistent manner. This Essay focuses not on the nature of the rules but rather on the nature of the power wielded by the courts that implement them. It contends that objections to judicial enforcement of single-subject rules have implicitly assumed the federal judicial power as the standard against which to assess the practice, when in fact state judicial power—as to which, for one thing, the “countermajoritarian difficulty” often does not exist—may differ in ways that open the door to more aggressive judicial review.
Maximizing Disability: The Road to Extractive Federalism
Karen M. Tani
Of the many alarmist commentaries on U.S. disability benefits in recent memory, few have explored state and local governments’ efforts to channel needy residents toward disability-based income support programs—and to thereby shift the cost of care onto the federal government. This Essay documents the rich history of such efforts, going back to the 1980s.
This Essay also emphasizes an inflection point in this history: Starting in the early 1990s, private, for-profit consulting companies began securing contracts from states for the “shifting” work that legal aid organizations had been doing. Simultaneously, these companies marketed their “revenue maximization” services, encouraging state officials to see federal health and welfare programs as a resource to be mined. This Essay connects this extractive mindset to today’s “extractive federalism,” which scholars have documented in both the foster care and nursing home contexts.
Critical Family Regulation Scholarship
S. Lisa Washington
This Essay examines how emerging scholarship has drawn on experiential epistemologies and interdisciplinary research to intervene in the mainstream narrative around the efficacy and impact of the family regulation system despite these barriers. After discussing the need for critical analyses of the system and identifying examples of emerging critical family regulation scholarship, this Essay conceptualizes this scholarship’s promise and grapples with future implications.
Chevron’s 51 Imperfect Solutions
Christopher J. Walker & Neena Menon
In June 2024, the U.S. Supreme Court eliminated the judicial deference federal agencies previously received for their statutory interpretations, overturning the Court’s landmark 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. While Chevron was never binding on state courts, where the balance of powers and state constitutions may require different or no deference to agencies, numerous states have adopted Chevron deference, Skidmore weight, or similar deference regimes for judicial review of agency legal interpretations. Despite these developments, little scholarly attention has been paid to how and why states have developed administrative law’s deference doctrines, how the doctrines have changed over time, or how they may further evolve in light of Chevron’s demise at the federal level.
The State Statutes Project
Neel Guha & Diego A. Zambrano
This Essay sketches out a vision of an in-progress effort to spur empirical research on state laws. We plan to use large language models (LLMs) to produce an annotated database of state statutes. This database would contain an easily accessible version of all state statutes and, within them, statutory clauses of interest to academics. Each clause would be annotated according to variables that might help researchers across a range of disciplines, including law, political science, and economics. These could include, for instance, whether a clause creates a private right of action, whether it creates an immunity from lawsuits, whether it is a criminal provision derived from a model code, and so on. In this Essay, we demonstrate an early application of the State Statutes Project, focusing on provisions that, in one way or another, contain foreign relations ingredients.
Our plan is for the Stanford Neukom Rule of Law Center to publish and host the database with the hope of supporting empirical work on state law. Such a database would hopefully emulate what similar projects have done in other areas, including the Comparative Constitutions Project, which opened up and significantly improved research on constitutional provisions. This Essay describes the goals of the project, its structure, and progress thus far.
Purcell Principles for State Courts
Robert Yablon & Derek Clinger
Existing commentary on Purcell, most of it critical, has focused on the federal level. A large and growing share of election litigation, however, occurs in state courts. This Essay surveys pre-election remedial practice and the status of the Purcell principle in state-level litigation. Based on a review of every reported state court decision to have cited Purcell through the November 2024 general election, our key descriptive takeaway is that state courts are not mirroring the U.S. Supreme Court’s strong aversion to preelection relief. Instead, they have taken a more nuanced and context-specific approach. Conceptually, we explain that there is good reason for state courts to chart their own course in this area—something they are free to do since the Purcell principle is an equitable doctrine by and for federal courts. The federalism concerns that partly undergird the Purcell principle do not apply to state courts, and state courts have distinctive powers and duties that make a blanket presumption against pre-election intervention inappropriate.
Prescriptively, building on existing state caselaw and academic commentary, we identify several considerations for state courts to weigh as they decide whether to grant pre-election remedies. These considerations, which we refer to as Purcell principles for state courts, aim to get at each case’s underlying equities and help courts discern whether, on balance, intervention ahead of an election is warranted. This Essay concludes by discussing how the federal Purcell principle impacts pre-election U.S. Supreme Court review of state court remedial rulings, such as when litigants ask the Court for emergency relief on the ground that a state court violated the Federal Constitution’s Elections Clause.