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Thursday, February 09, 2012

Studying State Law

I am at the University of Virginia the next couple of days as part of this fabulous conference on Conflicts of Interest: Resolving Differences in Global Legal Norms. In studying that question, one tends to focus on federal courts and federal law. As I have observed here, however, many international law cases may be brought under state or foreign law and, in some cases, in state court. For those interested in a retreat from east coast weather, Chris Whytock (UCI), Mike Ramsey (USD), and I are co-organizing a symposium on human rights litigation in state courts and under state law, which will be held March 2 at the UC Irvine School of Law. Further information is here.

With this as background, here is my question: Are we spending too much time teaching and studying federal law when we should be looking more critically at state law and, in particular, its relationship to international and foreign law? Obviously, many of our students will practice state law. I wonder: Is there a way to bring more state law into our teaching and scholarship and, if so, how?

Posted by Trey Childress on February 9, 2012 at 11:36 AM | Permalink


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Even though many of us in the academy teach state private law (e.g., Torts, Property, Contracts, etc), and despite decades of serious attention to state public law among state constitutionalists (starting with Hans Linde in 1970), it remains surprising to people outside of the field that this law exists. There are some good reasons for this, but see also Judge Jeffrey Sutton's article, Why Teach-and Why Study-State Constitutional Law, 34 Okla. City U.L. Rev. 165 (2009).

Posted by: Justin | Feb 9, 2012 1:49:50 PM

"Are we spending too much time teaching and studying federal law when we should be looking more critically at state law"

Short answer: Yes.

Long answer: I'll give you an anecdote. Many moons ago, while I was a government lawyer, a state court complaint came in. It was basically a taxpayer lawsuit. Ah ha, I thought. Is this an Establishment Clause claim? No? Well, it's just plain black letter law that there is no taxpayer standing. Duh. So I pull up a federal 12(b)(1) as a starting point, modify it to reflect the right parties and such, and then go about finding the state equivalents to Frothingham and Valley Forge and Hein. Waaaah-wuuuuh! Turns out that the state taxpayer standing rules are totally different in this jurisdiction. Taxpayer lawsuits are commonly allowed here. This piqued my academic interest, so I started looking at the rest of the states. It turns out that the taxpayer standing rules are permissive in most of them (though not all as a lot of scholars claim -- and the tendency to view the generic state law as some sort of homogenous, monolithic entity brings up its own separate issues, but I digress).

(Incidentally, I then get interested in the "why," and have been working on it, especially the past six months or so [LR editors, it's going to be touch-and-go whether I can get the submission in by early March, but expect something either next month or in August]. It turns out, I think, that a lot of the reason for the difference in state taxpayer standing rules is a function of a unique aspect of state constitutionalism -- the widespread tendency of state constitutions to try to protect taxpayers from the improper or ill-advised fiscal shenanigans of the legislature or executive branch. In other words, debt limits, public purpose provisions, compensation limits, technical appropriation requirements, etc. -- i.e., Briffault's "disfavored constitution.")

The point here is that most kids learn the traditional justiciability rules in Federal Courts, but they don't have any clue that it's a completely different story on some issues at the state level. I suspect something similar goes on in many subjects. This has two costs. First, and most obviously, younger attorneys confronting an issue for the first time are just wrong about the rules that apply to a given situation, and this can waste time (until they educate themselves properly) or even cause serious mistakes (if they don't). Second, and I think more importantly, it really makes them approach legal questions from a very rigid -- and probably unfortunate -- federal-centric mindset. They take up an issue with the baseline view that the scenario is going to look like the federal model, and view any deviation from that as some weird exception to the mainstream rule. But that's just not right. Maybe it's the federal doctrine or rule or whatever that is the substantial outlier. And all of this would be fine if most students were federal litigators most of the time, but they're not. Quite the opposite, I'd wager.

All of that said, I'm not really sure what the answer is. It will depend on the school and the class, I suspect. For schools that overwhelmingly place their students in a regional market doing local work (i.e., most law schools), it really wouldn't be a bad idea to incorporate substantive state law into certain classes. In Fed Courts (with an appropriate new title), make sure you teach these students that many of the federal rules are different in their state. In Crim, teach the MPC, but also teach the local laws. And so on.

National schools are a bit of a different story. Here, it's probably a waste to teach any specific state law, for obvious reasons. But you can still teach many of these subjects in ways that informs students that the law is different at the state level, and oftentimes for good and logical reasons.

Anyway, I've said too much already. Sorry to ramble!

Posted by: State law guy | Feb 9, 2012 12:37:43 PM

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