It’s hard to believe that summer is over. This is a summary of new scholarships in state law to prepare for a new semester.
State Constitutional Law
As the famous Judge Hans Linde once wrote about the state constitution, “the first thing.” I’ll start with a new job in the state constitution.
From rights and structure to local and federal relations, Jessica Bruman Pans and I have a new casebook at Foundation Press this summer. State Constitution: Cases and Principles. We discuss or are willing to talk about the book more generally about teaching state constitutional law, with those who are considering or currently offering courses.
Marcus Gadson’s Book Incitement: How America’s constitutional order emerged from a violent crisis It is currently available on NYU Press. It’s a must-read – to forge several early state establishment documents and to inspiring and keenly inform the violent conflicts that have recurred in state governments around the country. As the nation reflects recent potential constitutional conflicts, Gadson’s book offers important reflections from the state’s experience.
My colleague Brina Godard’s article, “Disenenfranchisement Creep,” Virginia Legal Reviewexplains overlooked ways to prevent voters from improperly depriving them of their rights through both formal and legal measures and informal hurdles. She argues that these forms of disenfranchising violate the state’s constitutional restrictions and that state constitutional litigation could provide remedials.
Molly Brady’s new symposium work, “Discussions on “public use” in state constitutional treaties,” takes on conspiracy-involved sensitiveness among those interested in the law. Her essay reveals how the constitutional drafters of 19th century states discussed the meaning of “public use” in the context of Takes. Their arguments did not reflect the inevitable march (or antipathy) over the broad definition of public use adopted by the US Supreme Court. Kero vs. New London A century later. Rather, the state’s arguments and answers reflect a variety of views on the breadth of public use and the principles of limitations.
Two other new works call for an agreement to interpret the well-known request of Judge William Brennan’s famous state courts more broadly than their federal counterparts. William Berry’s article, “Reliably Save the National Penalty Clause from Doctrine,” criticizes the state court’s harsh criminal penalty dul, arguing that the similarities between the eighth ban on amendments to the cruel and unusual punishment of the US Constitution imposes restrictions on state ruling laws.
And in “New Judicial Federalism and Establishment Clauses: The Ten Commandments of the Classroom as a Case Study of State Constitutional Protection,” Caroline Mara Corbyn argues that state courts can and should interpret the state constitution to assert the separation of church states. Under her approach, state courts appropriately reject laws like Louisiana’s mandate that displays 10 commandments in all public school classrooms.
It is also very valuable, focusing on the constitutional laws of a particular state or a subset of states. Articles by Katrina Fisher Kew, Nicholas Robinson and Scott Fein, “Constitutional Guarantees of Environmental Rights in New York” provide a context that supports the interpretation of New York’s new rights as “cleaning air and water and cleaning a healthy environment.” My colleague Derek Klinger’s new work, “Constitutional Limitations on Legislative Overrides of Ohio’s Statistical Initiatives.” Case Western Reserve Method Reviewaddressing the timely question of whether state legislatures could override statutory initiatives enacted by the people, arguing that the Ohio Constitution limits such overrides. And “Tiffany Lee examines and analyzes 11 state constitutional provisions that explicitly protect individual privacy, taking into account the scope of comparison and enforcement of these provisions.
State court
The past few months have also brought in fascinating new jobs at state courts. Constance Van Kley’s new article, “The Statewide Indunction: State Powers and Meaningful Remedies” (and State Court Report Characteristics), she predicts that debate over a universal injunction currently being heated at the federal level is heading towards state courts. But she argues that state courts should resist federal imitation on the topic. The constitutional and institutional differences in states support statewide injunctions, whatever the correct answer is at the federal level.
Adam Sopko’s upcoming articles Southern California Legal Review, “The supervision of the state’s Supreme Court reveals the broad powers of state high courts to exercise their exercise over the operation of the state’s judiciary. This article details and bounds the limits of supervisory power that influences individual rights and partnerships and defends court supervisors.
“Unconstitutional but not unconstitutional,” Cornell Law ReviewKatherine Steifel criticizes the doctrinal rule that most state courts apply: in 40 states and the District of Columbia, her investigation shows that courts refuse to invalidate legislation unless they are unconstitutional “beyond reasonable doubt.” She argues that the standard is inconsistent with the hegemony clause and fails to play the role of judicial protection and rejecting unconstitutional laws.
Federalism and national institutions
Many recent works address timely issues related to federalism or state government agencies.
With “federalism and the new national security,” Harvard Law ReviewAshley Deeks and Kristen Eichensehr explain the rise in state laws dealing with national security, from Tiktok regulations to laws governing international commercial transactions. Deeks and Eichensehr suggest a pathway to exploiting the benefits of this “entrepreneurialism” and minimize their possible shortcomings.
In “National Capacity Crisis,” Nicholas Bagley and David Schleicher add important aspects to the ongoing academic dialogue regarding the state’s ability (and “rich”) to criticize the US government’s ability to provide effective basic services and infrastructure. Bagley and Schleicher agree with these criticisms, but they observe that much of the responsibility is misdirected. It is the state and local governments that need to address the issue of capacity, not federal governments, as they provide most of the services that people depend on. Bagley and Schleicher take up the task by identifying key factors for the dysfunction of sub-national governments. This is a lack of accountability in sub-national policies, overly stringent administrative laws, and highly restrictive fiscal restrictions. The list may sound dry, but the work is not, and is an important reading for those interested in effective government.
Quinn Yeargain will take up different topics in a potentially timely manner and make a point in the future Discussions from UCLA Law Review The essay, “22-second amendment State Enforcement” is obligated to strengthen “22 amendments of the amendment” if the president is seeking a third term, and to enforce the 22nd amendment. Eargain claims that the Supreme Court has an opinion Trump v. Anderson It cannot be applied in the context of the 22nd Amendment, and state officials will be obligated to ban the third president from voting.
What about instances where states collide with each other? In “SHIELDS AS STATES”, we are approaching the following Minnesota Legal ReviewLindsay Wiley considers disputes that arise when one state’s law attempts to protect residents from the laws of another state (such as the Abortion Shield Act). Wiley insists on that Parent’s country Doctrines (usually known as the basis of Article III status) should be reconceptualized to inform these interstate disputes, and should support internal protection rather than “outside the territory.”
Finally, two new works highlight the institutional role of states that could fly under the radar. “In federalism in adjudication state,” David Chen says that states generally play a role in federal agency adjudication schemes, providing a more pluralistic, distributed adjudication than most administrative jurists would expect. And with “unlimited county government,” Daniel Rosenbaum uses examples of sheriff’s offices and library districts to tackle another ununderstood agency within the nation (county government) and explore its underestimated power over the consequential issues.
As always, send me a new article and read the recommendations. A summer happy ending for everyone.
Miriam Seifter is a law professor Richard E. Johnson Bascom, and a faculty community member of the University of Wisconsin Law School’s State Democracy Research Initiative.
Suggested Quote: Miriam Seifter, Return to School 2025: New Scholarships on Federalism and State Constitutions, Courts and Institutionssᴛᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (August 20, 2025), https://statecourtreport.org/our-work/analysis-opinion/back-school-2025-new-scholarship-federalism-and-state-constitutional-law
