AuthorPrice, Richard S.

    This article discusses an interesting empirical puzzle. A peculiarity of American federalism leaves state supreme courts (1) as final interpreters of their state law. (2) This necessarily means that state supreme courts have more constitutional authority than federal courts over state law. (3) Beginning in the 1970s, many scholars argued that state courts should and would use this authority to give their state Constitutions an independent meaning beyond the then recent conservative turn in federal constitutional jurisprudence. (4) As I discuss below, the reality of judicial federalism over the past forty years demonstrates that this expectation was never fulfilled. Instead of building a new, independent state constitutional law, state supreme courts still rely primarily on federal doctrine with only occasional state decisions offered on an ad hoc basis. (5) The question then becomes why, if state courts exercise final interpretative authority over their state Constitutions, would they so often defer to the U.S. Supreme Court on constitutional rights issues?

    In this article, building upon a set of related research, (6) I argue that a key element of the explanation for the limited development of state constitutional law is found in a fundamental aspect of the American legal process: lawyers need law. Lawyers are trained to think in terms of case law, in how that law can be applied, parsed, and distinguished to reach a favorable result to their client. (7) This model of appellate advocacy, however, relies on a basic predicate: there must be law to apply. (8) Faced with a wealth of federal constitutional doctrine, lawyers use the familiar in the absence of another option. In other words, for state constitutional law to become something more than just a series of ad hoc disagreements with the U.S. Supreme Court, it requires state supreme courts to offer a foundation and guidance to their lawyers in developing a new state constitutional path. Lawyers will follow the lead of their courts but, in an area as established as constitutional law, will rarely present the foundation for a new path of law absent that leadership.

    I explore and evaluate this idea through the experience in Oregon. Justice Hans Linde, the "intellectual godfather" of state constitutional law, developed a powerful theory of state constitutional law. (9) In both articulating the importance of giving primary attention to state constitutional rights claims (10) and offering early decisions elaborating a different constitutional framework, Linde's court broke a new doctrinal path and provided the law lawyers required to develop further arguments. (11) Through an examination of appellate arguments, I demonstrate that Linde's legacy was to fundamentally alter constitutional practice in Oregon. Across a spectrum of rights issues, state constitutional claims came to dominate with federal doctrine relegated to a secondary position. These findings suggest that courts are central to legal change in a way that law and courts' scholarship often discount: through their legal opinions, courts can push the legal support structure to adapt to a new legal framework, which in turn helps to strengthen the new doctrinal path. Thus, if state constitutional law is truly important, the target for change will have to be convincing courts to shoulder the initial burden of developing state law.


    It is fair to say that law and court scholars have long been focused on a deceptively simple question: why does law change? In other words, why does one legal idea win out at any given time? The classical approach to law aimed at "a uniform, undeviating, impartial application of supposedly neutral rules in all cases." (12) By focusing on "a high level of abstraction and generality[,]" classical legal thought "promoted neutrality, purportedly diverting the judge from being swayed by personal sympathy or aversion." (13) Building upon the legal realists of the early twentieth century, empirical scholars have undermined this vision of objective, politically neutral law. (14)

    The behavioral school of political science saw individual choices as the center of political behavior. (15) Early judicial behavior scholars argued that judging was simply another form of political choice. (16) This behavioral approach eventually became the attitudinal model, which concluded: "[T]he Supreme Court decides disputes in light of the facts of the case vis-a-vis the ideological attitudes and values of the justices." (17) Thus, judges are essentially just politicians in robes who make ideological choices and then justify those decisions with the trappings of law. (18) Another group of scholars posited that while individual political preferences were important, we have to remember that individuals, including judges, operate within a complex institutional web to achieve their goals. (19) As justices serve on multimember courts, their ability to achieve their goals is limited by the actions of fellow justices and the anticipated reactions of other branches of government, which "suggests that law, as it is generated by the Supreme Court, is the result of short-term strategic interactions among the justices and between the Court and other branches of government." (20) "Decision making is thus interdependent because justices' ability to have majority opinions reflect their policy preferences depends in part on the choices made by other justices." (21) These approaches share a common assumption that the primary motivation of judicial behavior is the individual justice's policy preferences, though they disagree on the degree to which those preferences are constrained by other forces. What these accounts tend to dismiss is the power of other institutions to influence courts and the way that being a member of an institution may shape a person's understanding of its mission and position in the political system.

    More recently, some scholars suggest that law may matter to judge's processes in ways more subtle and less mechanical than classical legal thought assumed. (22) A justice is an individual with policy preferences and biases, but he or she is also a member of a legal institution for whom the law matters. (23) In other words, the Court is not simply a small legislature:

    [L]aw matters. But it matters to different justices in different ways. The legal values do not completely supplant policy preferences, but clearly the relationship between the Court and policy is much more complicated than it would be if the Court were simply a small legislature of nine unelected politicians. (24) Through analysis of free speech, establishment, and search and seizure cases, Mark Richards and Herbert Kritzer demonstrated that "[l]aw matters in Supreme Court decision making in ways that are specifically jurisprudential." (25) In a study of unanimous and highly consensual Supreme Court decisions, the authors concluded that unanimity was likely where law was more certain because "in these instances, the justices' attitudes are more constrained and consequently the likelihood of consensus increases." (26) Similarly, statutes written with greater detail tend to constrain ideological voting in statutory interpretation. (27)

    One lesson of these court-centric explanations for legal behavior is that no single approach alone explains all, or arguably most, judicial behavior. (28) As Mark Graber argued: "Whatever areas of law scholars consider, the most fruitful investigations will explore the ways in which legal, strategic, and attitudinal factors interact when justices make decisions, and not engage in fruitless contests to determine which single factor explains the most." (29) Given this need for a multidimensional examination of influences on court decisions, scholars must give increased attention to the legal inputs and demands from litigants.


    Traditionally, law and courts scholars have tended to focus on court-centric explanations as described above. Courts, however, cannot do something with nothing; they do not operate in a vacuum. In one sense, legal development only has effect once the decision is implemented. (30) Other actors are similarly important prior to a court's decision as well. Students of interest groups have long noted the value of litigation because:

    The judiciary is inevitably a part of the political process. It is the locus of significant power, especially under our system of judicial review of the acts of co-ordinate branches of the government. Inevitably, therefore, the judiciary is one of the points at which the claims of interest groups are aimed. (31) The following scholars point us toward an examination of the input that courts receive from litigants.

    Marc Galanter provided one of the classic discussions of this problem when he demonstrated that "repeat players" in the litigation cycle naturally have an advantage over litigants with fewer resources and less experience. (32) This research suggests that explaining legal change requires, in part, exploring the nature of litigants and how they present claims. For example, studies of the Supreme Court bar found that certiorari was more likely to be granted and victory more likely when the party was represented by experienced counsel. (33) Susan Lawrence aptly summarized the importance of litigants: "The Supreme Court is a passive institution in that it depends upon litigants to provide opportunities for decision. The [Jjustices are powerless to act without a case." (34)

    Charles Epp brought this research tradition into sharp focus by refining the various strands into the concept of a support structure. (35) Epp explored the development of rights revolutions in Canada, India, the United Kingdom, and the United States. (36) The traditional court-centric explanations of legal change failed to adequately account for the varying success of rights...

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