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Bauries on State Constitutions & Individual Rights in School Finance Litigation

By Lawrence Solum

Scott R. Bauries (University of Kentucky College of Law) has posted State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation (George Mason Law Review, Vol. 18, 2011 ) on SSRN. Here is the abstract:

Since the advent of the New Judicial Federalism, scholars of state constitutions have developed a rich and textured account of state judicial approaches to state constitutional rights with federal analogues, at times questioning and at other times defending the legitimacy of different forms of doctrinal ?divergence? and ?convergence,? the latter often being referred to as the ?unreflective adoption? or ?lockstepping? of federal doctrine. This work understandably has not addressed state judicial approaches to state constitutional individual rights provisions with no federal analogues, as state courts in such cases have no federal court doctrine to adopt, reflectively or otherwise.

In this Article, I show that an overlooked form of convergence, which I term ?conceptual convergence,? is prevalent in state courts, particularly in the context of unique state constitutional rights provisions with no federal analogues, such as state constitutional education clauses. In litigation over such provisions, the state courts have shown a strong tendency to conceptualize education rights in ways that converge with federal conceptions of individual rights and legislative powers in general. I illustrate this ?conceptual convergence? phenomenon using the ?jural relations? framework first set forth by Wesley Newcomb Hohfeld. Professor Hohfeld?s framework reveals an orientation in both the state and federal systems toward conceptualizing rights as relationships of powers and immunities, rather than of duties and claims, even though many constitutional provisions would textually call for the opposite conclusion.

Nevertheless, I offer a defense of this conceptual approach in education clause litigation, grounded in the structural distinctiveness of state constitutional enumerations of power when compared with the federal document, with an eye toward avoiding the inter-branch conflicts that inevitably arise in litigation over ostensible ?positive rights.? Based on these principles, I present a foundation for the development of a more protective and less intrusive rights-based jurisprudence in state courts.

Full post as published by Legal Theory Blog on September 16, 2010 (boomark / email).