LEARNING FROM LABORATORIES OF LIBERTY.

• Author: White, Adam J.

The states are our laboratories of democracy. (1) But they are also laboratories of administration and laboratories of liberty. We all can learn from the states' experiments.

Scholarship on state administrative law and regulatory reform has flourished in recent years. (2) So has the work of state courts, taking harder looks at administrative law doctrines that too often are cited more reflexively than reflectively.

In Georgia, for example, the supreme court's presiding justice re cently recognized that the state's own version of Chevron deference, adopted eight years ago, was a misapplication of the state's constitution and of prior precedent: "[O]ur history of deference is messy," he wrote, "our precedent is all over the place," and in an appropriate case the state court "should reconsider the matter." (3) If the full court takes this path in a future case, then it will join Wisconsin and several others in reforming or rescinding the doctrine. (4)

Similarly, Kansas's supreme court recently reiterated the importance of legislative specificity and clarity, as embodied by nondelegation and void-for-vagueness doctrines: "The primary problem with a law that fails to 'provide explicit standards' for enforcement ... is that such laws 'invite arbitrary power,'" the court explained. "That is, these laws 'threaten to transfer legislative power to' police, prosecutors, judges, and juries, which leaves 'them the job of shaping a vague statute's contours through their enforcement decisions.'" (5)

There is a bit of irony in this new era of state experiment. The modern administrative state itself was conceived and defended in terms of experiment--not just at the federal level, (6) but in the states, too. (7) We should think of the current debates in similar terms: in formed by modern administrative experience and by a better understanding of constitutional principles.

States are learning from each other's experiments, most recently in Ohio, where the state supreme court's decision to recalibrate its deference to administrative agencies was informed by other states' decisions. (8) But federal judges can learn from the states, too. As Judge Sutton recently observed, "state and federal courts may borrow historical, practical, and other useful insights from each other," particularly in "how best to construe generally phrased, sometimes implied, limitations on the powers of each branch." (9)

In short, there is "plenty of opportunity for state-federal...