Thursday, October 21, 2010
Prof. Charlton Copeland (Miami) has posted on SSRN his forthcoming article Federal Law in State Court: Judicial Federalism Through a Relational Lens, which will be published in the William & Mary Bill of Rights Journal. Here’s the abstract:
Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared, federalism enforcement proceeds from a determination about the appropriate site and substance of authority. This conception of federalism enforcement preserves the Constitution’s commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act’s preclearance requirements. Federalism enforcement as allocation also underwrites much federal courts doctrine. We ask whether Congress has the authority to commandeer state courts, or whether states have the right to close their doors to federal claims.
This article challenges allocation as the exclusive method of federalism enforcement. By focusing on the issue of state court duties to federal claims, this article asserts that federalism enforcement includes an alternative to allocation - relational federalism enforcement. Relational federalism enforcement is understood as the judicial mediation of the interaction of the national government and state governments that goes beyond merely invalidating particular practices as beyond the scope of power of a particular institutional actor. Relational federalism enforcement is grounded in the recognition that the Constitution establishes an enduring relationship between states and the national government. Following from this, relational federalism enforcement relies on behavioral norms, imposed on both states and the national government, which are consistent with the enduring nature of their interaction under the constitutional structure of federalism. In contrast to several leading scholars who seek to justify state court duties to federal claims by reference to constitutionally-demarcated sites of authority, this article argues that the duties imposed on state courts with respect to federal claims are better explained when we look through a relational lens. This framework has important implications for our understanding of other aspects of judicial federalism, including federal court abstention and Supreme Court appellate review of state court decisions.
(Hat Tip: Larry Solum)