Hint: Look at the practical barriers to building state con law. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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We’re in a pivotal moment for state constitutional law. In the past few years, particularly after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women's Health Organization, there’s been unprecedented attention on state courts and constitutions as sources of rights. At the same time, in most states and on most issues, state courts continue to interpret their constitutions in lockstep with federal law, with no consideration for state-specific conditions, history, or constitutional differences.

For those of us who want to see states develop their own constitutional law, which reflects the needs and interests of their own citizens, the million-dollar question is: What are the practical hurdles to building state constitutional law? Part of the million-dollar answer: a lack of dollars.

Federal law incentivizes litigants to explore and refine rights under the U.S. Constitution. For example, when plaintiffs bring federal constitutional lawsuits, the Civil Rights Attorney’s Fees Award Act of 1976 (known to its friends as Section 1988) allows winning plaintiffs to recover attorneys’ fees. This is a big deal in making civil rights litigation financially feasible, especially when plaintiffs are looking to stop bad behavior rather than seeking damages. By contrast, only a few states have similar fee-shifting laws for state constitutional litigation.

Back in February, State Court Report and the Brennan Center partnered with the NYU Law Review to hold a symposium on The Promise and Limits of State Constitutions. Over two days and seven panels, more than two dozen judges, scholars, and practitioners interrogated the question of how to build state constitutional law and many others. (For those who weren’t able to make it, I’m excited to share that the videos for the full event are now available

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for your viewing pleasure. And if you’re like me and almost always prefer reading the transcript, we’ve got you covered, too.) Money kept coming up.

One of our panelists, the ACLU’s Julie Murray, recounted

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participating in a year-long case in Iowa requiring hundreds of attorney hours and recovering a grand total of $300 in costs.

This lack of fee shifting is a big impediment to developing a robust state civil rights bar: there aren’t many organizations or firms with the capacity to bring major constitutional challenges without the possibility of recovering fees, and civil rights plaintiffs aren’t typically well heeled. With this set of incentives, state claims often receive short shrift. Similarly, damages caps can make it harder for plaintiffs to seek full recompense for violations of state constitutional rights, discouraging lawsuits that could establish or expand rights.

Funding also impacts lawyers’ capacity to effectively represent state court litigants — including developing new state constitutional arguments. Public defense and legal services in the states are woefully under-resourced, and in areas like landlord-tenant and family law, unrepresented litigants are the overwhelming norm. State courts themselves also face stark underfunding and overwhelming dockets. As Yale Law School professor Judith Resnik noted

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, state courts are the “emergency rooms” of our system, where 95 percent of all cases are filed. As a society, we’ve made a choice not to equip them to vindicate rights.

Money isn’t everything, of course. There are many other hurdles to building state constitutionalism, not least that most law schools don’t have a state con law course

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. But if we want to see state constitutional development outside of a few big areas, a big piece of the story is resources and incentives.





State Reproductive Rights Decisions Highlight Stark Contrasts

Recent decisions in Arizona, Florida, Nevada, and Pennsylvania highlight stark contrasts in how courts approach reproductive rights, explains Mary Ziegler, a law professor at the University of California, Davis. “State supreme courts have emerged as a major site of progress for those advancing reproductive rights, but the latest round of rulings has painted a more complex picture,” Ziegler writes. Indeed, state courts have “revived laws passed before the Civil War” and “signaled an interest in recognizing fetuses as persons under state constitutions” — underscoring the importance of upcoming judicial elections. Read more

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Election 2024: The Pitfalls of Collecting Signatures for Ballot Initiatives

Collecting the signatures required to qualify a citizen-led initiative for the ballot is more complicated than it might appear, requiring volunteers or paid signature collectors to follow specific, sometimes confusing, procedures or risk having the signatures disqualified. “These stringent rules for evaluating ballot initiative signatures do not serve democracy,” writes Tulane University law student Will Notelovitz, who has worked as a campaign office director in several states. Read more

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Harvey Weinstein, Donald Trump, and Introducing Past Misconduct in Criminal Trials

New York’s highest court overturned the sexual abuse conviction of disgraced movie producer Harvey Weinstein, finding the trial court improperly allowed evidence about his prior misconduct to be introduced. Similar evidentiary questions have arisen in former President Trump’s New York criminal trial regarding his prior acts. The Brennan Center’s Brianna Seid and Lauren-Brooke Eisen discuss what the Weinstein ruling might mean to the Trump case. Read more

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A Conversation with California Supreme Court Justice Goodwin H. Liu

The most recent installment of State Court Report’s interview series with current and former state justices features California Supreme Court Justice Goodwin H. Liu. He spoke about the benefits of being open-minded about one’s career, the exoneration of someone wrongfully incarcerated in one of his most memorable cases, and why the role of state courts deserves attention no matter the political climate. Read more

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Michigan and the Major Questions Doctrine

In the third part of his series on the major questions doctrine, law professor Evan Zoldan writes about a Michigan court’s reliance on the doctrine to decide that a state agency could enact a policy after a statute implementing that same policy had explicitly been repealed. Although Zoldan commends some aspects of the decision, he concludes that “the court made a misstep by assuming that Michigan’s institutional structure justifies the doctrine in the first place.” Read more

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What’s Next for Marijuana Legalization in Florida?

The Florida Supreme Court said last month that a citizen-led initiative that would legalize recreational marijuana use for people 21 and older could be on the ballot in November. But even if it passes, there are many ways “lawmakers can undermine or chip away at the right to marijuana, even one enshrined in the state constitution,” writes Jonathan Marshfield, an associate professor at the University of Florida Levin College of Law. Read more

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Georgia DAs Challenge Law Limiting Prosecutorial Discretion

District attorneys in Georgia are challenging a statute that allows elected prosecutors to be disciplined and removed for their prosecutorial decisions and speech. The separation of powers issues raised by the case represent questions “of deep constitutional significance, and not just in Georgia,” argues Jordan Phillips, a legal fellow at the Public Rights Project, which represents plaintiff district attorneys in this litigation. Read more

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What Else We’re Reading

The University of Wisconsin Law School’s State Democracy Research Initiative is hosting Public Law in the States: The Work of State Supreme Courts

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on May 31 with several state supreme court justices. The conversation is in person with an option to attend virtually.





You Might Have Missed

Last week, the Arizona legislature voted to repeal the state’s 1864 law banning abortion, which the state supreme court had held was enforceable. The Brennan Center’s Erin Geiger Smith spoke

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to Drexel University law professor David Cohen about state constitutional arguments against an abortion ban, and whether an initiative protecting abortion will be in front of Arizona voters in November.

A New York appeals court heard arguments last week over whether to issue a temporary injunction on the implementation of a 2023 law that allows mail voting for all New York voters during the state’s early voting period. Republican groups are challenging the law

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, saying the legislature expanded absentee voting beyond limitations described in the state constitution.





Notable Cases

Hogan v. Southern Methodist University

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, Texas Supreme Court

Held that a pandemic-era law that protected schools from having to pay monetary damages for changes made to the academic experience, such as conducting classes online, did not violate a Texas constitutional clause prohibiting retroactive laws. // Houston Public Media

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Barrett v. Montana

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, Montana Supreme Court

Ruled that laws banning transgender athletes from playing on women’s college teams and limiting student speech and political activity were unconstitutional. // Bozeman Daily Chronicle

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Sisolak v. Polymer80

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, Nevada Supreme Court

Upheld several statutes relating to bans of “ghost guns,” overturning a district court ruling finding the statutes unconstitutionally vague. // Associated Press

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Oral arguments for prominent cases are previewed monthly, and the resource is updated as arguments are added to the calendar. The May preview is here

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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.









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