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New Frontiers of State Constitutional LawDual Enforcement of Norms$
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James A. Gardner and Jim Rossi

Print publication date: 2010

Print ISBN-13: 9780195368321

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780195368321.001.0001

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Interjurisdictional Enforcement of Rights in a Post-Erie World

Interjurisdictional Enforcement of Rights in a Post-Erie World

(p.103) 7. Interjurisdictional Enforcement of Rights in a Post-Erie World
New Frontiers of State Constitutional Law

Robert A. Schapiro

Oxford University Press

This chapter turns to the complex interplay of state and national judicial power. The unusual dual structure of the American judiciary creates a system of intersystemic adjudication that provides a way for state and federal courts to work together to safeguard important liberties. Elaborating a concept of “polyphonic” judicial federalism, the chapter takes issue with several well-established principles of federal adjudication that counsel federal courts to avoid construing state constitutions. In fact, the chapter maintains, federal adjudication of state constitutional claims can in many circumstances yield substantial benefits by multiplying the institutional settings in which such claims are considered, generating intersystemic dialogue on the meaning of constitutional principles, and better utilizing available system redundancy to maximize the effectuation of recognized rights. In defending an account of an expanded federal adjudicatory role, the chapter rejects the view that Erie Railroad Co. v. Tompkins requires a complete separation of the state and federal judicial spheres. It argues that nothing in Erie's account of state and national judicial authority impugns the legitimacy of intersystemic judicial dialogue and cooperation, which can go a long way toward reducing error in both systems.

Keywords:   state constitutions, federalism, federal courts, constitutional principles

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