Academic journal article Albany Law Review

Expanding Rights under State Constitutions: A Quantitative Appraisal

Academic journal article Albany Law Review

Expanding Rights under State Constitutions: A Quantitative Appraisal

Article excerpt

Much of the scholarship addressing state supreme court(1) interpretation of state-based liberties is what social scientists refer to as qualitative analysis.(2) Decision-making is investigated in general terms,(3) with regard to particular courts(4) and particular rights, including freedom of expression(5), equal protection(6) and rights of the criminal defendant.(7) Some works take a quantitative approach(8) to the study of the new judicial federalism(9), and more are beginning to appear, primarily in political science and criminal justice literature.(10) However, like most of the qualitative investigations, many of these quantitative works tend to focus on state court development of an independent body of state constitutional law, i.e., deciding cases based on state constitutional law although the result may be to follow U.S. Supreme Court analysis of the federal analogue.(11) Fewer studies address the extent to which supreme courts use their state constitutions to extend rights beyond federal levels of protection.

Alan Tart, a renowned state constitutional law commentator, has correctly noted that quantitative analyses, which treat individual decisions as equal units, often obscure the impact of individual cases.(12) Nonetheless, such studies add to our understanding of the behavior of state courts in the new judicial federalism. Indeed, the knowledge uncovered through these quantitative works allows us to reach more concrete conclusions concerning the current and future role of state courts in civil liberties policymaking.(13)

None of these quantitative analyses have included a systematic investigation of the extension of rights across numerous issues.(14) For example, in what areas have state courts been the most active in extending rights? In what areas have courts been the least active? What may explain these differences? This article addresses these questions through a quantitative investigation of the extension of rights over the first twenty-five years of the new judicial federalism. The analysis focuses on criminal justice issues and issues falling within the scope of the First Amendment of the Federal Constitution.

The investigation indicates that over the first twenty-five years of the new judicial federalism, state supreme courts tended to follow the U.S. Supreme Court's analysis of the federal protection when interpreting the state constitution, expanding rights in only about one-third of the state constitutional cases. However, the rate at which state courts expanded rights varied significantly across issue areas. While some issues were in areas in which the Supreme Court had taken a conservative turn, others were not, suggesting that state courts provide broader rights under the state constitution for reasons other than to replace a formerly guaranteed federal right.

Part I of this Article will review some of the major published quantitative investigations of the new judicial federalism.(15) Many readers of this annual commentary may not have come into contact with these studies, given that they primarily appear in social science literature. Part II sets out the research methods used to collect and analyze the data,(16) and the results are presented in Part III.(17) Finally, Part IV concludes that although this quantitative study confirms state courts generally follow the federal interpretation of counterpart state constitutional provisions, this practice in fact varies significantly across different issue areas.


Quantitative studies of the new judicial federalism generally fall into one of two categories. First, there are studies that address the extent to which state courts use their constitutions to resolve civil liberties claims, regardless whether the decision follows federal precedent or recognizes broader rights under the state charter.(18) Second, there are those that investigate the extent to which state courts, when using their constitution to resolve civil liberties claims, extend rights beyond levels guaranteed in the Federal Constitution. …

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