In June 2021, the State Democracy Research Initiative at University of Wisconsin Law School hosted a conference on Public Law in the States. This event helped kick off the Initiative’s mission of fostering academic research on democracy and government at the state level. Federal law and institutions tend to dominate popular discourse and legal education, but it is state and local governance that most affect our day to day lives. The Initiative and the June conference grew out of the understanding that meaningful democracy at the state level requires research and learning focused on the states.
Justice Goodwin Liu
In his keynote speech on June 22, 2021, California Supreme Court Justice Goodwin Liu highlighted the value of state constitutionalism as a way to channel interpretative disagreements between courts. Justice Liu explained that the very structure of our system of federalism demands that state courts interpret laws independently, as they are structurally redundant to federal courts. State courts can and do disagree with the U.S. Supreme Court’s conclusions, and such disagreements need not reflect a state’s unique constitutional provision or history. The interpretative pluralism facilitated by our system of federalism allows states to provide protections for basic liberties beyond a federal floor. Sometimes, an influx of high state court decisions can also induce a second look by the U.S. Supreme Court.
Chief Judge Jeffrey Sutton
In his keynote speech on June 23, 2021, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit argued in favor of state courts as “laboratories of democracy,” drawing on the metaphor originally applied by Justice Brandeis to state legislatures. Judge Sutton lamented that when interpreting individual rights, state courts tend to start with a presumption that what the U.S. Supreme Court has said about the federal guarantee should also apply to the state guarantee— sometimes in the face of unique state constitutional history or provisions. In Judge Sutton’s view, state courts should serve as laboratories of democracy to not only provide for state protections beyond a federal floor, but also to determine that state guarantees should be less protective than comparable federal guarantees. Such state court innovations can create a feedback loop with the federal judiciary.
The conference also featured moderated discussions with scholars regarding state institutions, state constitutions, and state-level democracy. Many of the discussed works will be published in a forthcoming special issue of the Wisconsin Law Review.
1. State Institutions
The first panel, moderated by Dave Pozen of Columbia Law School, centered on state institutions. Maggie Lemos (Duke University School of Law) presented State-Local Litigation Conflicts, which explores intrastate divides over affirmative litigation by local governments. Justin Weinstein-Tull (Sandra Day O’Connor College of Law at Arizona State University) presented Suspect Institutions, exploring potential implications of problematic structural characteristics (like opacity) present in some state institutions, while Michael Pollack (Cardozo School of Law)’s Courts Beyond Judging assesses the many functions beyond traditional judging assigned to state courts. Bridget Fahey (University of Chicago Law School)’s Federalism Big Data, 135 Harv. L. Rev. (forthcoming 2022) explores a different sort of overlooked state function: data-sharing across jurisdictional boundaries that creates “unorthodox” cross-governmental bureaucracies, which often lack clear lines of authority and are occluded from public scrutiny.
2. State Constitutions
The second panel, moderated by Emily Zackin of Johns Hopkins University, focused on state constitutions. Helen Hershkoff (New York University School of Law) and Nathan Yaffe presented Federalism and Federal Rights Minimalism: Overlooked Effects on State Court Education Litigation in Wisconsin, which argues that the lack of a federal constitutional right to education may have undermined education movements in the states rather than supercharging them, even in the face of explicit state constitutional protection. Molly Brady (Harvard Law School) presented Zombie State Constitutional Provisions, which highlights how arcane or currently unlawful state constitutional provisions can remain on the books and even “come back from the dead,” with many historical insights drawn from digitally available state constitutional convention records. Bob Williams (Rutgers Law School)’s Enhanced State Constitutional Rights: Interpreting Two or More Provisions Together considers how state constitutional provisions can be read to enhance or modify each other, while Rob Yablon (University of Wisconsin Law School) presented the Initiative’s own research on State Supreme Courts and State Constitutions which shows, among other things, how infrequently state courts interpret state constitutions at all.
3. States and Democracy
The third panel, moderated by G. Alan Tarr of Rutgers, discussed states and democracy. Jim Gardner (University of Buffalo School of Law) presented Federalism and the Limits of Subnational Political Heterogeneity, which considers whether and how subnational governments in a federation can preserve liberal democracy in the face of the national-level autocracy. Abby Wood (USC Gould School of Law) presented Measuring State Capture (co-authored by Pam McCann of USC Price School of Policy and Doug Spencer of University of Connecticut School of Law), which develops a quantitative measure of the degree to which powerful groups steer government actors’ policy agenda, while Michael Kang (Northwestern Pritzker School of Law) and Joanna Shepard (Emory University School of Law) presented an excerpt of Free to Judge: The Influence of Money in State Courts, a book project detailing why campaign money affects judicial decisions and what can be done about it. Ned Foley (Ohio State Mortiz College of Law)’s Tournament-Style Elections with Round-Robin Primaries: A Sports Analogy for Electoral Reform proposes a new voting system pulling from the concept of a “Round Robin” tournament in sports, which he argues offers an improved way to identify and implement preferences of the majority across a range of candidates.
4. Intrastate Affairs
Jessica Bulman-Pozen of Columbia Law School, discussed intrastate affairs. Maria Ponomarenko (University of Minnesota Law School) presented Legislative Administration, illuminating how local legislative bodies perform administrative functions that blur the boundaries of familiar administrative law categories and the doctrines built upon them. Fred Smith (Emory University School of Law) offered another reconceptualization through Federalism in the States, which suggests reframing state/local relationships as a form of federalism, and exploring questions and assumptions underlying both federalism and localism. Rich Schragger (University of Virginia School of Law) and David Schleicher (Yale Law School) presented two different visions of local government. In Schragger’s States v. Cities, he argues that state democratic practices and intrastate preemption doctrines fail to provide sufficient space for metropolitan governance, and points to state constitutional reform as a place to start. In contrast, Schleicher’s Exclusionary Zoning’s Confused Defenders provides a more skeptical account of local government decision-making, at least in the context of zoning, and critiques arguments against land use interventions by state or federal governments.