Table of Contents
Special Issue: Public Law in the States
Foreword
Miriam Seifter, Robert Yablon & Bree Grossi Wilde
The deluge of high-profile, high-stakes controversies flowing from the federal government over the past year has made it easier than ever for legal scholars and the broader public to overlook events in their own backyard. But amid federal upheaval, myriad important legal and policy developments continue to unfold at the state level. State courts have continued to issue important opinions on topics ranging from voting and redistricting, to education and guns, and to state constitutional structure. State and local policymakers have continued to confront vexing societal challenges involving housing, education, public safety, the environment, and much more. And voters have continued to weigh whether to amend their state constitutions, including in ways that directly implicate the functioning of state democratic systems. These are all rich subjects for scholarly inquiry that too often go unstudied.
The Essays in this Special Issue were presented at, or grew out of, the fifth annual Public Law in the States Conference hosted by the State Democracy Research Initiative at the University of Wisconsin Law School in May 2025. This annual conference brings together scholars and state jurists to explore questions pertaining to state public law, including examining distinctive features of state governance and the relationship between states and the federal government. In addition to a keynote judicial panel, this year’s conference featured four academic panels on state public law and democracy, state constitutions, state courts, and state institutions.
The Next Chapter in Health Care Federalism: Expanding Medicaid from the Ground Up
Michelle Wilde Anderson & Lina Volin
In much of the South and a few other conservative states, 1.4 million low-income adults have been excluded from access to Medicaid coverage. Now, in the wake of federal lawmaking in 2025, millions of additional Americans nationwide (including in these states) will lose access to Medicaid benefits and affordable health insurance. With America’s population of uninsured and underinsured people poised to grow dramatically, this might seem like a foolish time to talk about Medicaid expansion.
But new pressures can generate new politics. This Essay focuses on states that have opted out of Medicaid expansion, where a rising tide of newly uninsured people may nudge those states to seek new and politically low-profile ways to make up for lost ground. This Essay argues that local governments—particularly, multicounty partnerships brokered with these states’ biggest central hospital complexes—should be the focus of a new phase of policy development for low-income health care. Just as local governments were at the vanguard of Medicaid expansion in early Affordable Care Act implementation, they can become important leaders in a new wave of lawmaking to, at long last, bring health care access to low-income communities in the South and Midwest.
Local Government Standing as State Standing
Katharine Cooney & Katherine Mims Crocker
This Essay argues that standing law should take the foundational understanding of local governments as arms of the state seriously—not just to municipalities’ detriment, but also to their advantage. The law should view local government standing as state standing, such that states can, and frequently do, accord interests analogous to the state’s own and delegate authority to sue in the state’s place. This shift would allow localities to sue in more situations than current doctrine permits. But it would also respect the principle of ultimate state control.
State Constitutions and the Right to Gender Autonomy
Katie Eyer
Trans scholars have long theorized a fundamental right to gender autonomy under the Constitution: the right to self-determine one’s gender and to express that gender free from state interference. Such a right to gender autonomy could be a powerful tool in challenging the diverse forms of trans-restrictive legislation and regulation across the United States. Moreover, pursuit of such a right would align the interests of the trans and nonbinary community with numerous others, including the intersex community, gender-nonconforming cisgender people, and even gender traditionalists who may fear government intervention. And yet prospects for achieving recognition of such a right to gender autonomy under the Federal Constitution currently seem bleak. As illustrated by Dobbs v. Jackson Women’s Health Organization, the Supreme Court is currently retrenching federal substantive due process protections. And the case of United States v. Skrmetti signals that the Court may be generally unreceptive to the constitutional claims of trans litigants for the foreseeable future. In this environment, it seems unlikely that even the lower federal courts will feel free to recognize a novel federal substantive due process right protective of transgender rights.
This Essay thus takes up the question of how such a right to gender autonomy might be moved from “off the wall” to “on the wall”—and suggests that state constitutions hold promise as a pathway forward. Just as gay rights advocates once used state constitutions to move sexual autonomy and marriage rights into the mainstream of constitutional law, state constitutions again today could play an important role in the legitimation and recognition of rights of gender autonomy.
Problems of Compliance in Election Law
Lisa Manheim
Elections do not operate in perfect compliance with the law. Instead, irregularities are routine and, to some extent, inevitable. The law of elections responds to this tension by recognizing that only some legal irregularities, under only some circumstances, have even the potential to invalidate an electoral process. One manifestation of this response involves variable standards of compliance. Doctrines implicated by these standards recognize that some election rules require only substantial compliance, rather than strict compliance, to be considered fulfilled. These compliance standards serve a vital role in election law regimes across the country. The basic operation of these standards is, moreover, intuitively sensible. Nevertheless, the case law surrounding these distinctions tends to be analytically tortuous. The convoluted nature of these precedents is due in part to the complexity and diversity of election law regimes across the country, in part to imprecision in how courts and litigants discuss these concepts, and in part to tensions between these compliance standards and the rise of textualism, which in recent decades has become the governing methodology for statutory interpretation. This Essay describes the need for these compliance standards in elections, a reality reflected in their long pedigree in the case law. It then explores how and why the doctrine surrounding these standards poses so many challenges. Finally, this Essay concludes by reiterating the need for these standards and offering suggestions for improvement.
History and Tradition in Constitutional Interpretation: Resistance in the States
Serena Mayeri
In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court applied a narrow historical methodology to conclude that abortion was not sufficiently “deeply rooted in the Nation’s history and tradition” to be protected by substantive due process. But the past need not be a constraint on Americans’ constitutional rights: Critical histories can provide valuable resources for debates about reproductive rights and justice. Before and after Dobbs, many state courts have interpreted state constitutions in ways that diverge sharply from Dobbs’s narrow version of history-and-tradition analysis. Their decisions, and the advocacy that produced them, illustrate a rich array of alternative approaches that ask different questions of the past and consult a much broader range of voices in seeking answers about our constitutional present and future. Other states have followed Dobbs or otherwise retrenched. The devastating impact of abortion bans on the lives and health of women and pregnant people in the years since Dobbs heighten the stakes of these arguments about the role of history in constitutional interpretation.
Lockstepping Structure
Darrell A. H. Miller
The new judicial federalism is now entering its early middle age. As it has matured—moving from rights to structure—it has become more complicated in its application. For if one were to take arguments about state experimentation and interpretive flexibility to their logical conclusion, there is no reason state legislative, executive, and judicial powers should stay in lanes demarcated by federal constitutional law. Easily amended state constitutions and elected judges support theories of judicial function more akin to statewide legislative policymakers than passive judicial magistrates. Positive rights in state constitutions would seem to demand recalibration of the rules of standing and the ranking of first- and second-order rights. The very fact that state constitutions often specify the creation, maintenance, and entrenchment of an administrative state seems to counsel a completely different theory of administrative discretion, executive power, and judicial deference than the one currently supplied by federal separation-of-powers jurisprudence. Nevertheless, many state courts continue to reflexively cite federal constitutional principles in construing the structure of their state constitutions. This Essay looks at the phenomenon of lockstepping state constitutional law to federal precedent once the question turns from rights to structure.
Tort Logics for State Constitutional Injuries
Sarah L. Swan
When violations of the Federal Constitution cause injury, § 1983 provides plaintiffs with a path to seek redress. But state constitutions usually lack a § 1983 analogue, leaving state courts to decide whether their state constitution contains an implied private right of action. Different courts have reached different conclusions: At last count, sixteen states had upheld an implied right of action for at least some state constitutional violations, while approximately half of the states deny that any such private right of action exists. In coming to their differing conclusions, however, virtually all of these courts agree that the availability of tort law as an alternative source of remedy is an important consideration. From there, some courts insist that common law tort claims are sufficient to vindicate state constitutional rights, and others hold they are not.
This Essay makes two interventions into this debate. First, it argues that common law tort claims capture different concerns than state constitutional claims. Second, this Essay argues that a majority of state tort claims acts already provide a convenient framework for separating wrongs that belong in the realm of common law tort from political wrongs that belong in the state constitutional sphere.