Linde's Legacy: The Triumph of Oregon State Constitutional Law, 1970-2000

By Price, Richard S. | Albany Law Review, Summer 2017 | Go to article overview

Linde's Legacy: The Triumph of Oregon State Constitutional Law, 1970-2000


Price, Richard S., Albany Law Review


I. INTRODUCTION

This article discusses an interesting empirical puzzle. A peculiarity of American federalism leaves state supreme courts (1) as final interpreters of their state law. (2) This necessarily means that state supreme courts have more constitutional authority than federal courts over state law. (3) Beginning in the 1970s, many scholars argued that state courts should and would use this authority to give their state Constitutions an independent meaning beyond the then recent conservative turn in federal constitutional jurisprudence. (4) As I discuss below, the reality of judicial federalism over the past forty years demonstrates that this expectation was never fulfilled. Instead of building a new, independent state constitutional law, state supreme courts still rely primarily on federal doctrine with only occasional state decisions offered on an ad hoc basis. (5) The question then becomes why, if state courts exercise final interpretative authority over their state Constitutions, would they so often defer to the U.S. Supreme Court on constitutional rights issues?

In this article, building upon a set of related research, (6) I argue that a key element of the explanation for the limited development of state constitutional law is found in a fundamental aspect of the American legal process: lawyers need law. Lawyers are trained to think in terms of case law, in how that law can be applied, parsed, and distinguished to reach a favorable result to their client. (7) This model of appellate advocacy, however, relies on a basic predicate: there must be law to apply. (8) Faced with a wealth of federal constitutional doctrine, lawyers use the familiar in the absence of another option. In other words, for state constitutional law to become something more than just a series of ad hoc disagreements with the U.S. Supreme Court, it requires state supreme courts to offer a foundation and guidance to their lawyers in developing a new state constitutional path. Lawyers will follow the lead of their courts but, in an area as established as constitutional law, will rarely present the foundation for a new path of law absent that leadership.

I explore and evaluate this idea through the experience in Oregon. Justice Hans Linde, the "intellectual godfather" of state constitutional law, developed a powerful theory of state constitutional law. (9) In both articulating the importance of giving primary attention to state constitutional rights claims (10) and offering early decisions elaborating a different constitutional framework, Linde's court broke a new doctrinal path and provided the law lawyers required to develop further arguments. (11) Through an examination of appellate arguments, I demonstrate that Linde's legacy was to fundamentally alter constitutional practice in Oregon. Across a spectrum of rights issues, state constitutional claims came to dominate with federal doctrine relegated to a secondary position. These findings suggest that courts are central to legal change in a way that law and courts' scholarship often discount: through their legal opinions, courts can push the legal support structure to adapt to a new legal framework, which in turn helps to strengthen the new doctrinal path. Thus, if state constitutional law is truly important, the target for change will have to be convincing courts to shoulder the initial burden of developing state law.

II. LEGAL CHANGE AND THE COURT-CENTRIC MODELS

It is fair to say that law and court scholars have long been focused on a deceptively simple question: why does law change? In other words, why does one legal idea win out at any given time? The classical approach to law aimed at "a uniform, undeviating, impartial application of supposedly neutral rules in all cases." (12) By focusing on "a high level of abstraction and generality[,]" classical legal thought "promoted neutrality, purportedly diverting the judge from being swayed by personal sympathy or aversion. …

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