NCJ Number
150556
Journal
Judicature Volume: 78 Issue: 1 Dated: (July-August 1994) Pages: 25-32
Date Published
1994
Length
8 pages
Annotation
This analysis of decisions of State supreme courts concludes that, despite the promotion of what has come to be called the New Judicial Federalism, State supreme courts rely on Federal laws in the vast majority of their decisions related to the protection of civil liberties and human rights.
Abstract
For the last 2 decades, attention has focused on the development and use of State constitutions for protecting these rights and liberties. New Judicial Federalism essentially represents the development of State constitutional law for deciding issues with parallel provisions in State and Federal law. The extent to which State courts rely on their own law was measured through an analysis of 249 cases involving issues related to the right against self-incrimination. The cases were decided by all 50 State supreme courts; about 27 courts decided each issue. The research focused on two factors: (1) the extent to which State courts rely on State law in their opinions and (2) in decisions based on State law, the strength of State court commitment to developing State law as a viable alternative to Federal law. Findings revealed not only that State supreme courts usually rely on Federal law but also that even courts that base their decisions on State law usually do not do so in ways that will lead to the State law's development as a viable alternative to Federal law. The analysis concludes that political, legal, and institutional barriers limit the willingness of State courts to develop their own constitutions for issues that have already been decided by Federal law. Footnotes