Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations

By Cauthen, James N. G. | Albany Law Review, Spring 2003 | Go to article overview
Save to active project

Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations

Cauthen, James N. G., Albany Law Review


Oftentimes a party will argue before a state supreme court (1) that the court should undertake an independent analysis of its state constitution and recognize broader civil liberties protections than provided under the analogous provision(s) of the Federal Constitution. The party may support its argument with decisions of other state supreme courts expanding rights under their state constitutions. In opposition, the court may be presented with decisions of still other state courts interpreting their state constitutions consistent with United States Supreme Court interpretation of the Federal Constitution. While there are other sources of authority to which the court may turn to resolve state constitutional questions, including its own previous decisions, state constitutional language, and state constitutional history, (2) the court may ultimately look to out-of-state decisions for guidance. (3)

This is an example of what Professor Alan Tarr identifies as state court interpretation of state constitutions within a "universe of constitutions." (4) Although the United States Supreme Court generally has chosen not to look to state court interpretation of state provisions when interpreting the Federal Constitution, state supreme courts oftentimes have looked within this pool of cases when interpreting their constitutions. (5) Indeed, New Jersey Supreme Court Justice Stewart G. Pollock urged state courts in a 1985 article to engage in this "horizontal federalism" and communicate decisions affecting fundamental rights for other state courts to consider when interpreting their state protections. (6)

The body of scholarship--much of it generated by political scientists--seeking to explain why a state supreme court chooses to expand rights under the state constitution has not, to date, addressed the influence of decisions rendered by other state supreme courts. While scholars cannot read the minds of the justices to determine how sister-state pronouncements may have impacted the resolution of their state constitutional issues, the judicial opinions generated in these cases do serve as written accounts of their decisions, and within these opinions, justices will usually include citations to other cases both from the same court and, oftentimes, from other courts. (7) These citations may provide some insight into the extent to which state courts communicate with each other over the meaning of state constitutional provisions and engage in horizontal federalism.

This study investigates the level of horizontal federalism in state civil liberties interpretation through a citation analysis of state constitutional decisions. Focusing solely on the portions of the majority opinions interpreting the scope of the protections afforded under the state constitutions, support for horizontal federalism is found, as the courts included in the study cited decisions from other state courts in over one-third of their decisions. (8) The level of citation to other state court decisions was higher in those decisions in which the state court afforded citizens broader rights under the state constitution than provided under analogous provisions of the Federal Constitution. These results provide initial empirical support for horizontal federalism, but, as more fully discussed below, it may be that future levels of out-of-state citation will fall, as states increasingly build up their own precedent from which state constitutional decisions may be constructed.

Part I of this article briefly addresses how existing empirical studies of decision-making under the new judicial federalism have failed to incorporate the influence of horizontal federalism, and how a citation pattern study can provide some preliminary evidence of inter-court communication to be considered in future investigations. (9) Part II of this article sets out the methodology used to collect and analyze the data to study citation patterns, (10) and the results are presented in Part III.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Horizontal Federalism in the New Judicial Federalism: A Preliminary Look at Citations


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?