Date of Award
Doctor of Philosophy (PhD)
Thomas M. Keck
onal law, judicial federalism, lawyers, state constitutional law, state courts, support structure
Dismayed over the increasing conservatism of the U.S. Supreme Court, state judges, lawyers, and scholars in the 1970s argued for a new judicial federalism. State courts, using state constitutions, may provide protections exceeding the federal minimum. In addition to allowing states to experiment with solutions to rights disputes, and recognizing unique state traditions, judicial federalism had instrumental value in ensuring state level protections that were protected from review at the federal level. While supporters saw judicial federalism as a means of realizing the principle of dual constitutional rights protection through principled development of a body of state law, the reality proved to fall short of these hopes. Rights issues in state courts still focus heavily upon federal law with limited development of state constitutional law. Explanations for the limited development of judicial federalism have tended to focus on the court centric explanations of judicial ideology, separation of powers, and state political environment.
This dissertation examines the limited development from another angle by examining the support structure for state constitutional activism. Courts rely upon lawyers to develop claims for courts to act upon, and the strength of this structure helps explain how state courts have dealt with state constitutional activism. Courts, however, are not powerless to influence the content of the arguments presented by lawyers. Through their opinions, courts send signals and give guidance about the kinds of claims it wishes to hear. Given that lawyers are conditioned to think of rights issues in federal terms only, the support structure should generally be fairly anemic with lawyers focusing on federal law primarily. However, two kinds of signals can alter this behavior. First, the federal retrenchment signal occurs when the U.S. Supreme Court overrules or narrows a rights doctrine, and where it refuses to recognize new rights claims. Second, the internal encouragement signal occurs when a state high court embraces state law either in the form of a particular doctrine or a broader theory of state constitutional law. Under either of these signals, lawyers should turn to state law providing state courts with a stronger support structure for state constitutional law.
This dissertation explores these questions through an examination of legal arguments presented to four state high courts (New York, Ohio, Oregon, Washington) and a set of remand arguments in 14 states from the 1970s to 2000. Three principle findings are identified. First, the support structure is normally quite weak. Absent signals from either state or federal courts, litigants rely upon the federal law they have been taught when dealing with rights issues with virtually no attention to state law. Second, federal retrenchment does lead to more state constitutional arguments but in a limited manner. Lawyers tend to give limited attention to the traditional legal arguments in favor of attacking the policy choices involved in the U.S. Supreme Court's retrenchment in an attempt to convince the state court to simply evade this change by applying the previous federal rule under the dressing of state law. Third, state court encouragement also leads to greater attention to state constitutional arguments but without the same focus on policy concerns. Instead, lawyers tend to abandon concern for shifts in federal law in favor of the legal factors and arguments taken from the guidance of the state high court. In addition to adding to our knowledge of the reasons for the limited development of judicial federalism, this research adds to our understanding of the interactions between lawyers and courts in the development of legal doctrine.
Price, Richard S., "Lawyers Need Law: A Study of Constitutional Arguments Made to State Supreme Courts" (2012). Political Science - Dissertations. Paper 109.