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The paper I want to call to readers' attention is Rick Hills' very interesting short piece, Counting States.  Rick writes that the Supreme Court "frequently bases federal constitutional doctrine on state law, often doing so by counting states' laws in a variety of doctrinal contexts to determine the legislative consensus among the States. . . . [A]cross this doctrinal variety [in which counting occurs], state counting involves two common elements: judicial use of state law to inform the content of federal constitutional doctrine, and judicial evaluation of states' laws collectively rather than singly to determine a state 'consensus.'"  He suggests that, whatever the Court says or thinks it is doing when it counts states, the practice is best understood not as using state counting as a source of national law, but as a limit on national law: state counting uses the states' consensus "to place an outside limit on the judiciary's enforcement of its own view of the constitutional norm."  He likens it (if I understand his argument) to Justice Harlan's tradition-based methodology of due process in Poe v. Ullman.

It's a very interesting piece.  One question I have about it is whether the distinction is as stable as Rick suggests: whether it is always possible to tell the difference between state counting as a source of national law and state counting as a limit on national law, and whether it is always possible to tell what a "limit" on national law is.  That's just a tentative thought, however.

What I find more interesting is the dog that doesn't bark in Rick's article, despite his extensive discussion of cases like Atkins v. Virginia: the use of foreign state counting.  I know Austen is finishing his rotation here, but I hope he'll weigh in, since he's discussed these issues in greater depth than I have.  Still, it seems to me that much of Rick's argument for state counting, and particularly his arguments for why state counting is less disturbing than some might think, are potentially applicable to the use of foreign states' judgments in the same cases.  For instance, he writes that the Court treats state laws as "'relevant' but not decisive evidence concerning the national standard of decency that it enforces" in Eighth Amendment cases, because the "Court does not . . . suppress outliers from a state consensus unless those outliers offend the Court's own view of the constitutional norm."  This seems to me to be a fair restatement of what some defenders of the practice of citing foreign courts have asserted: that foreign state counting does not import "foreign" values, but rather is a means of elucidating the Court's own, ultimately home-grown, view of constitutional norms.  It's interesting, too, in this regard, that he references Harlan, since Harlan said in Ullman (and is quoted by Rick) that he looked to "what, by common understanding throughout the English-speaking world, must be granted to be a most fundamental aspect of 'liberty.'"  Shades of Atkins and Lawrence!    

Perhaps Rick will also weigh in and tell me why I'm wrong.  But it seems to me that his article could be usefully read as a (partial) defense of the practice of citing foreign court decisions as well as state court decisions.