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Michael Morley: State Constitutional Claims in Federal Court
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted Litigating Imperfect Solutions: State Constitutional Claims in Federal Court (Constitutional Commentary, forthcoming) (29 pages) on SSRN.  Here is the abstract:

In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit emphasizes the important role of state constitutions and state courts in protecting individual liberty. Suggesting that plaintiffs usually inexplicably overlook state constitutional claims, Sutton laments that, in his fifteen years on the federal bench, he has heard only a single case involving a state constitutional claim. The book does not recognize, however, the range of procedural and jurisdictional doctrines that either prevent federal judges from adjudicating state constitutional claims, or allow them to avoid doing so. These doctrines likely deter litigants from devoting time and resources to attempting to litigate state constitutional claims in federal court.

This Book Review examines and suggests reforms to these doctrines, including Pullman abstention, Pennhurst sovereign immunity, and district court discretion to decline supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c). Though the Supreme Court has yet to articulate a single, coherent theory concerning federal courts’ proper role in adjudicating unsettled issues of state law, this Book Review’s initial recommendations would reduce friction between federal and state courts, eliminate arbitrary inconsistencies in current doctrine, and facilitate efficient adjudication of litigants’ claims.

Intuitively, I'm conflicted on this topic.  On one hand, my guess is that most of the abstention and related doctrines at issue here are made up by the Court without much foundation in originalist materials.  But on the other, (a) my guess is that at least some of the doctrines that get state constitutional claims into federal court in the first place are also made up, and (b) more importantly, the review's focus suggests a preference for federal court litigation of state claims that the founding generation likely did not share.

In any event, here is a link to Judge Sutton's excellent book 51 Imperfect Solutions (Oxford Univ. Press 2018).