Back-to-school and deep freezes are a good time to familiarize yourself with state public law. Over time, several scholars have investigated state power and interstate conflict in federalist systems. Here is an overview of the new features.
Federalism, conflict, and interstate tensions
In “Agonistic Federationism,” Aziz Huq and Zak Clopton observe the emergence of “no-holds-barred” conflict between states and the national government. They describe potential state responses to interstate conflict, identify unresolved doctrinal questions raised by this era of heightened intergovernmental struggle, such as the anti-commander problem, and sketch possible endgames. A valuable and sobering read.
In “The Tenacious Power of Constitutional Torts,” Joanna Schwartz emphasizes the benefits of suing the government for violations of constitutional rights, writing against a literature that often emphasizes the drawbacks and limitations of such lawsuits. (Although her article focuses on Section 1983 lawsuits against state and local officials, she also notes that state “reverse 1983” laws have increased interest in federal employee liability.)
Noah Chauvin’s recent essay, “Can States Force ICE to Remove Masks?” provides a negative answer to that question, while also highlighting other ways states may oppose this practice.
Ethan Lowens’ new article focuses on rising tensions between the states. What happens if states increase criminalization of acts that are legal in other states (such as abortion or gun ownership), leading to unwanted extradition requests? In “Interstate Extradition,” Lowens proposes amending the Uniform Criminal Extradition Act to give state governors reciprocal authority to “refuse unwanted extradition requests,” an approach he says is consistent with historical practice.
state court
Several new articles examine state courts. The essay “Court Reform and State Constitutions” by Brina Godard and I examines state court reform through the lens of state constitutions. State legislatures routinely seek to shape state judicial outcomes by changing the structure and powers of state courts. We argue that while state constitutions do not prohibit measures to align state courts with popular will, such changes require at least public involvement and review, which is sorely lacking today.
Other new research examines state court decision-making methodologies. In “The Seeds of Lockstepping in State Constitutions,” Michael L. Smith details some of the unique ways state courts follow federal precedent. Darrell A.H. Miller’s essay “Lockstepping Structure” takes a skeptical look at the phenomenon of state courts following federal precedent on questions of government structure. And Selena Maeli’s essay, “History and Tradition of Constitutional Interpretation: State Resistance,” identifies and assesses how state courts have reasoned about postwar history.dobbs Abortion incident. (Mayeri and Miller’s article, as well as others discussed in this post, Wisconsin Law Review Concentrate on state public law. )
Recent research has also addressed important issues related to litigation and redress for state constitutional violations. Sarah Swan’s essay “The Logic of Torts for State Constitutional Injuries” provides insight into whether and when state constitutions include an implied right of action for state constitutional violations. Jonathan Marshfield’s article, “Rethinking Structural Injunctions in State Constitutional Litigation,” argues that while federal courts have long been wary of remedies that involve courts in agency reform, a number of differences in state courts justify a stronger remedial role.
state constitution
New research also sheds light on issues of rights and structure in state constitutions.
Adam Davidson’s article, “No Exceptions: A New Movement to Abolish Slavery and Involuntary Servitude,” examines recent state constitutional amendments that would completely ban both slavery and involuntary servitude, with exceptions for crimes contained in the Thirteenth Amendment. Davidson addresses important issues in the area of state constitutions. Why don’t these reforms lead to change on the ground, in this case forced prison labor? He persuasively argues that organizing, litigation, structural reform, and political struggle all need to work in tandem to achieve change.
Additional articles and essays explore the potential for states’ constitutional rights in other areas. In “State Constitutional Duties and Public Speech,” Scott Voorhies argues that state constitutions, based on the language of their speech provisions and the political theory underlying the government’s fiduciary duty, may provide greater protection for public official speech than the federal Constitution provides. Garcetti v. Ceballos framework. And in “State Constitutions and the Right to Gender Autonomy,” Katie Eyer analyzes how state constitutional rights provisions can support the right to determine one’s gender without state intervention.
Gregory Schwab’s article, “The Governor’s Emergency Powers,” looks from rights to structure, criticizing state laws that stripped governors of their emergency powers in response to the COVID-19 pandemic. Schwab argues that while this legislative backlash is constitutionally questionable and potentially disastrous in practice, more prudent reforms could rein in governors without catering to short-sighted legislative politics.
Lucien Ferguson’s article, “Challenging State Capture,” suggests that when there are indicators of capture in state law, courts should apply a stricter standard than the barren rational basis test. Ferguson grounds this standard in state constitutional constraints on legislative power and notes that some state courts have already applied variations of this enhanced review.
state agency
The new article also takes into account certain agencies of state government. In this election year, I’d like to highlight a few things that focus on elections and democracy. John J. Martin’s article “Unilateral Election Administration” (AALS Election Law Division Distinguished Scholarship Award Winner) draws attention to an understudied feature of election administration. American elections are generally decentralized, with power residing in states and localities, but each state has a single actor with the potential power to influence election results: an election official. This article considers how to protect these unitary actors from partisan manipulation.
Derek Klinger’s paper, “Using Unclaimed Funds for Election Litigation,” which won a contest sponsored by Auburn University, offers a practical solution to a pressing problem. He has proposed that states could use some of their unclaimed funds (assets such as abandoned bank accounts) to cover election administration costs.
Finally, the essay “The Problem of Compliance with Election Laws” by Lisa Manheim identifies the compliance standards that play a key role in election laws across the country. These standards determine how fully various election rules must be followed to be considered satisfied. For example, whether strict compliance or only substantive compliance is required. Manheim deftly shows that while compliance standards make intuitive sense, the case law surrounding them is complex. She gives suggestions for improvement.
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We wish everyone a safe and warm start to the spring semester. As always, feel free to send me new creations my way!
Miriam Seifter is the Richard E. Johnson Bascom Professor of Law and faculty co-director of the National Democracy Research Initiative at the University of Wisconsin School of Law.
Recommended quote: Miriam Seifter New Year’s Scholarship Summary: Federal-State Disputes, State Courts, and Election AdministrationSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (January 26, 2026), https://statecourtreport.org/our-work/analysis-opinion/new-year-scholarship-roundup-federal-state-conflict-state-courts-and
