Academic

McCormick on Federal Construction of State Institutional Competences

By Lawrence Solum

Marcia L. McCormick (Samford University - Cumberland School of Law) has posted When Worlds Collide: Federal Construction of State Institutional Competence (University of Pennsylvania Journal of Constitutional Law, Vol. 9, p. 1167, 2007) on SSRN. Here is the abstract:

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it does little to support the legitimacy of the federal courts. Recent Supreme Court cases reveal that the Court has begun to defer to state legislatures at the expense of the state judiciary, mimicking the federal separation of powers arrangements for federal issues. This is the first paper to systematically analyze that phenomenon. When the federal courts defer to a particular branch of state government at the expense of another branch, they risk infringing very seriously on state sovereignty. The power of the federal courts to review acts of Congress is a constitutional power. Similarly, the power of state courts to review acts of state legislatures is a matter of state constitutional power. Not deferring runs the risk of dictating what state constitutional law should be. And that result could nullify the power of the people within the states to define their government and to define their individual rights in a way more generous than that of the federal constitution. Thus, the practice of the Supreme Court conflicts with its notions of dual sovereignty. While dual sovereignty might be neither truly possible nor desirable in the age of the administrative state, it can provide some practical boundaries to divide the labor of the courts in our federal system when they necessarily interact. Thus, this article has suggested that the federal courts defer to state court analyses unless the state analysis frustrates a federal issue of substance, like an individual right, or a power explicitly granted in the federal constitution to another branch of state government.

Full post as published by Legal Theory Blog on March 21, 2008 (boomark / email).