Should law schools offer courses on state constitutional law?

A recent visitor plausibly argued that they should, though few do. Legal scholarship has ignored state constitutional law for decades, though this is gradually changing. My visitor argued that state constitutional law is more important for students and lawyers than federal constitutional law is. What do readers think?

common sense (www):
It depends on what market the law school is targeting. Although there is often overlap, most law schools target certain legal markets. Some schools will produce mainly state level lawyers, and some will focus on national level lawyers. Schools should determine where most of their students will practice and offer courses accordingly. This is especially true if you are a flagship public school for a certain state. Certainly, you should offer state constitutional law.
4.8.2009 4:17pm
Mike& (mail):
Yes. Pepperdine used to (maybe still does) offer it. Bernie James taught it. Very interesting stuff. (I couldn't take the class, but I got a hold of the syllabus and read the case books.) This is especially so in a state like California.

Some states - like California - provide more constitutional protections in areas than in the U.S. Constitution. The right to privacy, for example, is much broader than the federal right to privacy. Here is an old reference, but the first one I found on Google Books.

Why not have some fluency in these issues? It allows one to better serve one's clients. It's also objectively interesting.
4.8.2009 4:17pm
Is state con law more important than federal con law? Probably not. Is it important enough to teach, at least to some extent, in at least some classes? Yes.

Crim Pro is a good example. Quite a few states have state con law requirements (for search &seizure, e.g.) that are different from, and more demanding than, the federal requirements.

In general, isn't it true that there is too much federal law bias in law schools? Because professors move around the country? Because casebooks need to be marketed around the country? Because it's not cool to write about state law?
4.8.2009 4:18pm
Cityduck (mail):
Federal Constitutional law provides a baseline of rights across the 50 states, especially in the criminal law realm, and therefore cannot be deemed "less important" for students and lawyers than state constitutional law. But, because some state constitutions are now providing more rights than the federal constitution, acadmics concerned with staying abreast with the new legal trends (especially in hot areas like the gay marriage debate) should probably view these state constitutional law developments as the "most important" legal trend.

If legal scholars have indeed been ignoring state constitutional law "for decades," I'm surprised. The emergence of state constitutional law as a mode for expanding constitutional law beyond the federal constitutional minimum was a hot topic twenty years ago when I was in law school. Of course, that may be due to the fact that I was in lawschool during the Reagan/Bush years, and perhaps state protections for individual rights were viewed as less important after Clinton became President.
4.8.2009 4:22pm
Cityduck (mail):

In general, isn't it true that there is too much federal law bias in law schools? Because professors move around the country? Because casebooks need to be marketed around the country? Because it's not cool to write about state law?

This has the ring of truth. Also because federal clerkships are viewed as more prestigious and helpful to the academic job track than state clerkships.
4.8.2009 4:24pm
Absolutely, although not as a required course.

Being from Wisconsin, one of the leaders of "New Federalism", that would be very helpful.

It would also be very good for students looking to get State Supreme Court (or even appellate court) clerkships.
4.8.2009 4:24pm
Anderson (mail):
(1) Of course they should. It's the freakin' state constitution.

(2) Most won't. Law profs are lazy, like everyone else. Few will want to create a course from scratch, and how many *state* con-law textbooks are there? California, New York, maybe Florida and Texas, might offer some prospect of profit to a textbook publisher.

The alternative is some quaint old law prof who works up a course simply because his area of study is the state's constitution, teaching out of his notes and a course-pack supplement. Eventually he might turn that into a textbook.
4.8.2009 4:25pm
Thales (mail) (www):
It's a good supplemental class (maybe 1 or 2 credits) that can be aimed at students who will do state civil rights&liberties/administrative law/state regulatory work. Or did you have in mind a general, non-state specific course on trends in constitutional law outside the national system?
4.8.2009 4:31pm
Archon (mail):
State Con Law courses are very important in jurisdictions that have a history and tradition of relying on the state constitution as an independent source of rights. Collegues I know who practice in PA or NJ routinely rely on solely on state constitutional case law when constructing complaints, briefs, or arguments; especially in areas of criminal procedure.
4.8.2009 4:32pm
Joe Kristan (www):
It wouldn't do you any good here in Iowa, because our state constitution means only what the seven local law lords say it means.
4.8.2009 4:32pm
Dave N (mail):
I took state con law as an elective, even though I knew I was unlikely ever to practice law in Utah.

A state supreme court justice taught the class when I took it--and it proved an useful class even though I practice in a different state.

State constitutions provide a treasure trove of arguments that many attorneys don't even realize exist.
4.8.2009 4:43pm
Is there a distinct field of "state constitutional law" as such? Or are there a handful of decisions in a variety of subject matter areas where states, relying on their own constitutions, come out differently from the Supremes?
Outside of a purely state-oriented school, I can't see a whole course covering a particular state's constitution the way Con. Law covers the federal constitution: organization of government, legislative powers, judicial review, various substantive powers, civil rights and civil liberties. Instead, a aw school that teaches the criminal procedure of its state would cover leading decisions by the state courts relying on the state constitution. The property course would cover eminent domain issues under the state constitution. And so on.
Law schools not marketing themselves as a great place to attend if you want to practice in, say, North Carolina or Wisconsin would have to try to put together a "State Constitutional Law in General" course. The content of such a course would be hard to imagine. A theoretical section on the much-debated but really very dull question "When should the State Supreme Court not follow the lead of the U.S. Supreme Court?" (Answer: whenever it damn pleases; the meaning of the state constitution is a question of state law.) followed by a grab-bag of, mainly, civil rights, civil liberties, and criminal procedure cases from various states.
To practitioners in a particular state, the subject can be of great importance. I'm not sure it's a teachable academic subject, though.
4.8.2009 4:51pm
Andrew Schoppe (mail):
I would say that yes, law schools should offer such courses.
However, I think the determinative factor in most students' thinking about whether to take such courses is not what or where they're going to practice, but rather what will be tested on the particular bar exam they intend to take. A slight difference, but important when you're facing the bar as your next hurdle.
For example, I deliberately focused on taking as many California bar subjects as possible in law school (UCLA), and I found relatively few, if any, citations to the California state constitution to be required on its bar exam and rarely cite to it in my particular area of practice as a civil litigator. Idaho's bar examiners, on the other hand, required quite a bit more knowledge of that state's constitution on the exam. Don't know yet how much I will cite to it in practicing here, as I don't get my results until tomorrow.
4.8.2009 4:53pm
It depends. Many state constitutional law issues are similar to those that arise under the Federal constitution, even if the resolution is different. If you are training generalist lawyers with an ability to spot issues, then I doubt that a state constitutional course would do much good for those areas. That said, there are certainly some state constitutional issues that just don't arise in the federal context, e.g. citizen initiatives, elected judiciaries.

If you are training lawyers for practice, then a state constitutional law course could be very helpful. But no law school in the country really places a high priority on training lawyers for practice, or law school will consist of six months of BarBri and two years of doc review training.
4.8.2009 4:54pm
Skyler (mail) (www):
Seems like a possibly useful elective. I don't think my school even offers it. I'd probably take it if they did, but I suspect that my legal education is not suffering for lack of it. There are simply too many subjects to learn and you can't cover them all in three years. So there are plenty of other subjects that get short shrift already.
4.8.2009 4:54pm
Don't most law schools offer such a course, relating to the law of the state in which they are located? It wouldn't be helpful at, say Georgetown, but I could see most students wanting to take it. I don't think it would be more important than federal constitutional law, though.
4.8.2009 4:56pm
trad and anon (mail):
At schools where students are likely to practice in a wider range of states, what about a course on comparative state constitutional law? I'm imagining a course that would look at areas where state constitutional cases often come out differently from federal constitutional cases, and examine the different directions different states have taken. Make sense?
4.8.2009 5:05pm
Roger Ford (mail):
Chicago offered such a course while I was in law school; I think that Adrian Vermeule taught it.

(I didn't take it, as I wasn't really interested in constitutional law and took as little of it as possible.)
4.8.2009 5:06pm
Law schools routinely slight matters specific to any state's law at every opportunity, with rare exceptions (e.g., Louisiana's law school cater more than most to the state's ideosyncratic legal system). This is true even of issues important in key states or substantial numbers of states, such as Order to Show Cause practice in New York State, Delaware Chancery Court practice, or ex parte hearing practice in much of the South. Even in areas where the overwhelming majority of cases take place in state rather than federal court (e.g. criminal sentencing), the scholarship and law school curriculum is heavily biased towards federal practice. Where state constitutional law has penetrated the law school curriculum at all, it has mostly done so under the cover of existing more established subject (e.g. eminent domain in property law, state constitutional aspects of choice of law and jurisdiction, state constitutional aspects of family law, and state counterparts to federal constitutional law in constitutional law and criminal procedure courses).

In part, this is a matter of the professional interests of the professoriate. Law professors are hired, and advance professionally, based upon their publications written for a national audience of fellow law professors. Any state specific subject tends to have limited interest to this audience, even though the vast majority of the practicing bar operates predominantly in one or two states. In the same vein, people who set movies and books in Los Angeles and New York City settings get published more often, because the movie and publishing industries are based there.

One can, of course, do comparative state constitutional law, and there are a few people who do it. But, to really cover state constitutional law right, one must do it on an intrastate basis, because the textual nature of state constitutional law causes it to benefit somewhat less strongly from national common law jurisprudence than some other fields of state law. Also, for whatever reason, much of the better scholarship on state constitutional law is done in political science departments, rather than law faculties.

Subjects of tremendous local importance, such as state constitutional limitations on spending and taxation in Colorado, have little general applicability. Even states with similarly motivated provisions (e.g. California) often differ too much in detail for the case law to be relevant across state laws.

Then again, some of state constitutional law's lack of prominence is historical. The law school curriculum is something of a date stamp of its formative years in the 1870s when the modern law school emerged. There have been tweaks since, but every change is an epic battle. The part of state constitutional law of most interest to the private bar, relevant to individual rights, was long underdeveloped. Prior to the Warren Court, it constitutional rights, in general, as a litigation tool, were far less well developed. And then, state constitutional rights only really gained prominence as post-Warren Court justices on the U.S. Supreme Court pulled back, but not all state supreme court justices were willing to go along. The Warren Court burned a style of jurisprudence into our national consciousness that has now trickled down. So, maybe state constitutional law's time has come.
4.8.2009 5:12pm
In Oregon, for example, speech provisions of the First Amendment to the United States Constitution and the recent Supreme Court decisions interpreting it, particularly regarding commercial speech, are irrelevant, because the Oregon Constitution, as intepreted for the past three decades by the Oregon Supreme Court, has much stricter protections for speech.

A similar situation, to a lesser extent, occurs with the religion provisions of the U.S. First Amendment.

Yet many Oregon law students are completely unaware of this.
4.8.2009 5:16pm
Should they offer it? Yes. Should they require it? No. For all the reasons above.
4.8.2009 5:18pm
Troll (mail):
At a state school like Penn or Cornell I absolutely think they should focus on state-level constitutions.
4.8.2009 5:24pm
Federal Dog:
"Collegues I know who practice in PA or NJ routinely rely on solely on state constitutional case law when constructing complaints, briefs, or arguments; especially in areas of criminal procedure."

They always rule out habeas review?
4.8.2009 5:33pm
Bruce Wayne:
I believe it would be a useful course of study. In addition to the many useful comments above, it might be helpful to point out such things as the fact that at least 10 state constitutions explicitly include a right to privacy. E.g., Alaska Const. art. I, § 22; Ariz. Const. art. II, § 8; Cal. Const. art. I, § 1; Fla. Const. art. I, § 23; Hawaii Const. art. I, § 6; Ill. Const. art. I, § 6; La. Const. art. I, § 5; Mont. Const. art. II, § 10; S.C. Const. art. I, § 10; Wash. Const. art. I, § 7.
One might litigate the bounds of such a right under those provisions directly rather than deal with penumbral mess that is the SCT's substantive due process jurisprudence.
4.8.2009 5:40pm
trad and anon (mail):
In part, this is a matter of the professional interests of the professoriate. Law professors are hired, and advance professionally, based upon their publications written for a national audience of fellow law professors. Any state specific subject tends to have limited interest to this audience, even though the vast majority of the practicing bar operates predominantly in one or two states.

This is especially true since law professors advance professionally by being hired by more prestigious schools. If your area of expertise is California constitutional law, you have very little chance of being hired by any law school outside California even if you're the world's #1 expert on the subject.
4.8.2009 5:44pm
Archon (mail):

They always rule out habeas review?

We are talking about collegues that are handling minor criminal cases at the local trial level that will probably never even make it to the intermediate appellate court on appeal let alone to habeus review.

How often does Joe Redneck seek habeus review for his DUI conviction (let alone even a direct appeal?)
4.8.2009 5:47pm
Some Dude:
I'm a total layman, and I'm astonished that law schools don't have courses on state constitutional law.

Not even their home state?
4.8.2009 5:50pm
einhverfr (mail) (www):
Most of the important decisions that affect people's day to day lives happen at the state level. Hence I think that State Constitutional law is extremely important, perhaps moreso than Federal Constitutional law, at least as an overall field.

Consider for example, the various state rulings on gay marriage, which are literally all over the map.

However, the problem from a law school's perspective is that any given state's Constitution is certainly less important to the country as a whole than is the Federal Constitution. Hence I think you would have extreme problems logistically in teaching the topic.

Extremely important, extremely difficult to get right, probably a waste of time and effort. How is that for an answer.
4.8.2009 5:54pm
Fla Bar Taker:
I sure wish I would have taken it at UF seeing as its a mandatory subject for the Florida bar in a couple of months...
4.8.2009 6:02pm
Tony Tutins (mail):
I think a one-hour class in state con law would be good to make available, focusing on the differences between the state and federal constitution. Make it a paper course, so everyone has to delve into the law on their own, and you won't need a case book. Hand out the paper topics the first week: Protected classes, Freedom of Speech and Religion, Direct Democracy, etc.
4.8.2009 6:06pm
My law school had a state con law class. It wasn't required but some people took it. I think the bar exam in the state of my law school (not the bar I took) even has state con law as one of the topics for the essay section.
4.8.2009 6:18pm
It ain't worth studying when it ain't followed (mail):
It wouldn't do you any good here in IowaMICHIGAN, because our state constitution means only what the sevennine local law lords say it means.
4.8.2009 6:24pm
Pointer (mail):
Law schools in the state of Alabama offers State Con Law as a class, but I guess it's a necessity when your state has the longest Constitution in the world....
4.8.2009 6:25pm
Lots and lots of non-lawyers confusing law school with Bar/Bri . . . .
4.8.2009 6:25pm
einhverfr (mail) (www):

799 amendments and counting! Wow......
4.8.2009 6:38pm
einhverfr (mail) (www):
Of course, something is SERIOUSLY wrong with a State Constitution (like Alabama's) that is choked by amendments like:

Effective the first day of the sixth month after ratification of this amendment, employees of the Office of the Sheriff of Mobile County, except for all appointed or contract employees, shall be under the authority of the Personnel Board of Mobile County. The provisions of this amendment shall not affect the legal status of the sheriff's deputies as state constitutional officers and shall not abrogate or limit in any way any immunity from liability they enjoy pursuant to that status.

Also, the entire Alabama Constitution reads like a complete code of law. No wonder specialized courses are required in it.
4.8.2009 6:45pm
My law school offers a very good class on the local state constitution, taught by one of the leading national scholars on state constitutional law. I didn't take the class, but I know many who did and thought it was quite good.
4.8.2009 6:50pm
Local law would be more useful to students in such fields as state civil procedure.
4.8.2009 6:55pm
I've always thought that there is a certain arrogance surrounding constitutional law that needs to be seriously checked. Law schools certainly give students the impression that true intellectuals flock to Con Law, whereas, say, only a humble tradesman would dare be a securities litigator or local prosecutor. I also think it's demonstrably false that we get better constitutional law from the Supreme Court than we would if you didn't have to be a top-3 graduate from a top-10 law school to clerk there. State constitutional law is indeed important, but I think it'll take a lot to overcome the presumption that Con Law is so intellectual and morally heavy as to demand our most serious attention.
4.8.2009 7:03pm
corneille1640 (mail):

You're probably right. But as a non-lawyer, I find constitutional law much more fun to dabble in.
4.8.2009 7:08pm
GainesvilleGuest (mail):
It depends on what type of practice you'll be doing, which depends at somewhat on what law school you attend.
4.8.2009 7:11pm
SFJD (www):
It should definitely be offered as an elective. Would it depend on the state as far as how important it is to know? Here in CA it is pretty important, at least as far as my experience in criminal law.

More importantly I think more schools should teach state civ-pro, as another commenter noted above.
4.8.2009 7:15pm
tarpon (mail):
Sure why not, while it still around. Constitutions can make good study vehicles and historical documents. Shows what can be done if you stick to the emanations from the penumbras.
4.8.2009 7:16pm
Jim at FSU (mail):
I took it during my second year and enjoyed it. If you plan to practice in the state you are going to school, it's basically free bar prep.

I had (1st DCA Judge) Wolff as professor for that class and found it very enjoyable.
4.8.2009 7:17pm
DiverDan (mail):
Wow! I thought the Texas Constitution was overly detailed and filled with trivia - I had to read through it in order to (honestly) sign my application for admission to practice here. But you've convinced me that Texas runs no better than a distant second to Alabama.
4.8.2009 7:32pm
MarkField (mail):
I support the idea, but I think it's important to make some distinctions when it comes to a constitution like that of CA. I don't think law students care much about the Public Utilities Commission, for example. I suspect law students want to learn about those portions of state constitutions which parallel the US Constitution.
4.8.2009 7:39pm
Jake H (mail) (www):
The Stanford Law Review has been kicking around the idea of doing a symposium on "State Constitutions." What do people think of it? Any ideas on who we could/should get to write and talk for the event?
4.8.2009 7:42pm
Patrick Wright (mail):
The Michigan Supreme Court has 7 justices.
4.8.2009 7:49pm
Jake H - Hugh Spitzer
4.8.2009 8:02pm
frankcross (mail):
Jake, look at Dan Rodriguez of Texas. Does a lot on theoretical analysis of comparative state constitutional provisions
4.8.2009 9:25pm
Ohio State offers a seminar on State Constitutional Law (as a general matter, not a class on the Ohio state constitution) taught by Judge Jeffrey Sutton. Judge Sutton originally created the class with Richard Cordray, who is now the Attorney General of Ohio. The class is regularly one of the most popular at the school.
4.8.2009 9:31pm
mgh (mail):
shhhh! my career plan is to write this textbook!

in any case, NYU Law does have a seminar that seems somewhat applicable -- focusing on state constitutional law, taught by a former NY Court of Appeals (i.e., the highest court in NY) justice:
4.8.2009 9:37pm
Lucius Cornelius:
Back in 1986 I took the Florida Bar exam. There was a question on Florida constitutional law on the exam. It was dreadful because the question involved obscure case law; not anything that you could know if you had just studied the language of the constitution and the more immediate cases.

That was no fun at all. I passed the exam, but no thanks to my worthless answer to that question.
4.8.2009 9:52pm
RichardR (mail):
Prof. Adler could tell you whether it is still the case, but when I was at Case Western, Prof. Durchlag had a State and Local Government Law course. Among other things, it dealt with state constitutions. I'm not really sure how you would structure a whole semester on state constitutional law. The biggest concept is that state constitutions act as limits on the state governments, meaning that the state can do anything it wants so long as the state constitution doesn't prevent. Beyond that, most of it is mop-up work: when a federal law trump a state constitution, etc.

Aside from that, some state constitutional issues are already dealt with in standard courses. The most glaring one is in most states at least some civil liberties provisions in state constitutions are wider than their federal counterparts.

Perhaps state constitutions could be dealt with more in other courses, but I'm not sure whether there is enough material to fill a semester without concentrating too much on the constitution of the school's state. That sort of state-specific instruction is really annoying for students who know they are practicing elsewhere.
4.8.2009 9:55pm
tired of blogs:
All future legal academics learn about federal constitutional law in law school.

They often then move to other states, where, even if they had state con law in law school, their knowledge doesn't help much.

Since few legal academics actually practice law, they have no opportunity to learn the material they'd have to teach in their new state.
4.8.2009 10:10pm
arbitraryaardvark (mail) (www):
I could make the argument that a law school that fails to teach state con law is committing malpractice. State con law is equally important as federal con law, and no harder to teach. Most of the state con texts are similar, so if you know one it's easy to brush up on another. The general trend is for states to be weak in giving meaning and substance to the state cons, but that's in part because lawyers fail to litigate those issues. I went to Mizzou which didn't offer state con law, so I took that class from Justice Boehm once I started practicing in Indiana.
An example: the Bong Hits for Jesus case was settled for $50,000 on a state claim, after losing at Scotus. When your client is a high schooler, $50,000 looks a lot better than zero.
I never bring a case raising a federal constitutional claim without also raising state con claims, which are often cases of first impression. Sure, the parties and judges tend to ignore those aspects, or get the merits wrong, but it gives more bites at the apple, more ways to avoid dismissal, more billable hours, more fun.
4.8.2009 10:25pm
gw grad:
I took a state con law course at gw as a seminar taught by an adjunct. It was not focused on any particular state. We studied several and talked about what kinds of differences there often are between state constiutions and the federl Constitution. For particular issues, we often looked at examples that covered the full range of how the states looked it the issue. It was a great class and one of the most practically valuable to me in my real life practice. I disagree with all the commentors who have suggested such a class is only useful to students interested in a particular state. The development and interpretation of state constitutions in general is a worthwhile topic of study at any law school.
4.8.2009 11:04pm
John Martin:
We had a 2 credit seminar class taught by a sitting state supreme court justice. He brought in several of the other justices in to speak, as well as, experienced appellate lawyers who often practiced before his court.

It was an awesome class. It covered the history of the state constitutional convention; the develop of state constitution jurisprudence; and, how and when to apply the state constitution.

Interestingly, he said, he has seen many cases/briefs where lawyers did not use state constitution when it would have supported their argument.
4.8.2009 11:42pm
Robert Bastress is a prof at West Virginia University and teaches (and wrote a text book) on the WV state constitution. He's also been (and still is, occasionally) a practicing public interest lawyer.

A 2 or 3 hr "State Practice Class" directed at 3Ls staying in-state and giving a survey of state-specific civil and criminal procedure, evidence, and constitutional law would be most-helpful for many students.
4.9.2009 1:07am
Occasional Lurker:
Eh. When I took the California bar they didn't test at all on state constitutional law. And honestly state con law (at least in CA) is not a big deal if you use the US constitution as a reference point. If you understand how US con law works, that methodology generally carries over to the CA constitution. Some doctrinal areas are different, as with the state constitutional right of privacy, but it's no big deal to identify and isolate the pertinent case law. I never thought, and almost 30 years after my 1L year still don't think, that law school is about learning the substantive law in an area. It's more about frameworks of analysis.
4.9.2009 1:08am
mattbos (mail):
For the Stanford Law Review commenter: As someone mentioned above, there are several political scientists who work in state constitutional law. G. Alan Tarr and Robert F. Williams at Rutgers and John Dinan at Wake Forest come to mind immediately.
4.9.2009 7:47am
Titus Andronicus:
Here is what law schools should NOT do: offer a general survey of all state constitutional law. I took a class on state government like this in undergrad, and the book and professor refused to focus on key states, instead resorting to generalities like "states have legislatures and an executive known as a governor."

It's a useful topic, but only if you're going to study a specific state or states.
4.9.2009 9:03am
These debates are so cute... (mail):
Like it matters. Judges and justices have already made up their mind. Whatever justification they need, they'll find. And if they can't find the justification, they just change the facts. Brilliant!
4.9.2009 9:06am
Mark Monlux (mail) (www):
YES! We've got two sets of laws in this country, federal and state. Classes on the constitutions that govern those laws should be required for the understanding of the basis of the laws that have been established, and the laws that can be formed or changed.
4.9.2009 9:23am
VaK (mail):
I agree with aardvark's view that it is a form of legal malpractice not to teach state constitutional law.

Interest in state constitutions as a source of individual rights increased in the late 1970's after Justice Brennan reminded litigants of the "independent and adequate state ground" doctrine that could protect progressive results against reversal by an increasingly conservative US Supreme court bench. It is true, of course, that the variation among state constitutions poses a challenge for professors who would like to teach a general, rather than a state-specific, course in state constitutional law. The challenge, however, does not mean that the effort should not be made.

Robert Williams, who teaches at Rutgers and specializes in New Jersey constitutional law, has developed a good set of materials for professors who might want to take the plunge. In any event, there is no doubt that state constitutions are neglected in law school curricula, even though most law schools offer courses in state and local government and the standard common law subjects that continue to be resolutely state-specific despite pressures from federal pre-emption and that federal common law that does (Erie notwithstanding) exist.
4.9.2009 9:23am
Who Knowss (mail):
No. Law schools should be 1 year programs that teach the basics: torts, contracts, property, tax, regulatory/admin, evidence, and business associations. U.S. Constitutional Law is a joke, so I'm not sure why state constitutional law would be relevant to the lives of most lawyers. You could imagine their being an advanced degree: we'll call it an LLM, that does have some of that stuff for people who want to become academics.
4.9.2009 9:49am
Of course they should. But since schools only hire to be profs those who have gone from federal clerkship to federal clerkship, who would teach them?
4.9.2009 10:35am
J.G. Ballard (mail):
At the Indiana University School of Law in Indianapolis, I took a course in Indiana Con Law (taught by a state government attorney) and a more general course in state and local government law (taught by the state's Chief Justice). Both were very informative. The Indiana Con Law course would be well worth taking by any local attorney who plans on practicing any criminal law. Indiana's constitutional law has slightly different standards than the federal constitution for search and seizure and double jeopardy, just to name a few. In non-criminal law, there are important state constitutional provisions on free speech and defamation, religious freedom, the right to bear arms, "equal protection" (for lack of a better word), government financing, and education. Unfortunately, some attorneys don't know about these provisions, which can, in theory, provide more protection than the federal constitution.

Compare Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22 IND. L.REV. 575 (1989) (stating that the rights afforded to individuals pursuant to the Indiana Constitution stand separate and distinct from those conferred by the U.S. Constitution and the former has been held to provide greater protections against unreasonable search and seizures than its federal counterpart) with Jon Laramore, Indiana Constitutional Developments: The Wind Shifts, 36 IND. L.REV. 961 (2003) (concluding that the Indiana Constitution has not been the source of significant protections of individual rights, and although the Indiana Supreme Court has developed some different modes of analysis, individual rights under the Indiana Constitution are only marginally different than under the Federal Constitution).
4.9.2009 10:37am
David Drake:
I don't think it's objectionble. The concepts in the area of individual rights and crim. procedure are generally the same as in the U.S. Bill of Rights.

I practiced law for many, many years without having one single case in which a state constitutional question (other than the Georgia constitutional prohibition against contracts in restraint of trade) was important. About ten years ago I joined a firm that represents a municipal government; in that fairly specialized practice, the state constitution is important. But not otherwise.

State constitutional law is like any fairly specialized area of law (like contracts in restraint of trade): if it's important to your practice, you can pick it up without having a formal class. If it's not, why learn it?
4.9.2009 1:11pm
I would have taken it! Someone above nailed the reason, too -- I'm interested in state-level administrative law / regulatory work.

I think more schools might have courses on local government law, that discuss the relationship between local governments and the state, except in terms of widely-applicable doctrine. If you don't teach that sort of course in terms of generalizations and doctrine, I think you risk winding up with a pretty randomly-designed syllabus. But there's a lot you can do there.
4.9.2009 1:22pm
Yes, law schools should offer state constitution courses. I took a course on the Arizona Constitution from former Chief Justice Stanley Feldman, and it was excellent. He taught with a small packet of materials and a syllabus that told us which cases to print out and read for class. The course has come in handy only a handful of times. Why? Because not only do law schools generally fail to teach state constitutions, lawyers and judges fail to think about them as well. As a result, any constitutional question will be argued solely on the federal constitutional 99 out of 100 times. And the 1 time the state constitution is argued, the argument will be like this: "Sure we lose under the federal constitution, but you can disagree and let us win under the state constitution." The arguments are rarely ever backed up with any good reason why the state constitution should be interpreted differently. Perhaps we would have better discussions about it if law student learned about their state constitution and how to argue from it.
4.9.2009 3:40pm
In addition, a lot of the scholarship about state constitutions is much like the argument that I posted above: "we don't like the direction the Supreme Court has taken, so let's have our state supreme court make different decisions under our state constitution." I have read a lot of this stuff and very rarely do I see principled arguments about WHY there should be a different interpretation.
4.9.2009 3:43pm
I never took a course in state constitutions, but I think it would be valuable. Here in Illinois, there are at least two major provisions that have no federal counterpart that have been frequently used to invalidate state legislation. One is the prohibition on "special legislation" and the other is the "single subject" rule for legislation. If these provisions are not unique, it would be useful to know. I can imagine a "state constitutions course" that would deal with classes of provisions that do not appear in the federal constitution, such as interpretations of rights to privacy. Additionally, as has been mentioned, there are also various state interpretations of equal protection, which may be valuable from the standpoint of developing an argument under federal equal protection.
4.9.2009 7:44pm
einhverfr (mail) (www):

I have read a lot of this stuff and very rarely do I see principled arguments about WHY there should be a different interpretation.

I think there should be a different interpretation for a couple of principled reasons:

1) Federalism. The states have their own powers, and it is not not unreasonable to say that state Constitutions embody the wishes of different peoples within their respective states. Also in this way, I think that acceptance and unwillingness to amend the state Constitution implies a willingness to accept the existing state precedent on the subject. A useful counterexample to this (which validates this argument) would be Prop 8 in California.

2) Different documents: In most cases there may be subtle differences between the purposes of similar clauses in different documents. For example, the Iowa Constitution's guarantee of equal protections and privileges predates the EPC by a number of years and therefore shouldn't be interpreted as simply fulfilling the state's obligations under the federal EPC (i.e. it fulfils these obligations but might go well beyond them too). In some cases it might be reasonable to look to a law (like Washington law on abortions and trimesters) and say "we should look to Roe v. Wade as the obvious rationale for this law." And certainly this is the case of Constitutional clauses in some cases too. But there is no guarantee that this is the case with every clause.

Of course IANAL. I just pretend to be one on VC ;-)
4.10.2009 11:08am
einhverfr (mail) (www):
In short, federalism implies a federal government representing a collection of state governments. Each state government may have a somewhat different relationship with the people of the state than other states. Hence differences really should be expected.
4.10.2009 11:11am

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