State Constitutional Remedies and Judicial Exit Strategies

Hon. Randall T. Shepard

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Professor Williams’s The Law of American State Constitutions may be the most valuable modern work on state constitutional law. The book probes deeply into the ramifications of the differences between the Federal Constitution and state constitutions, and it explores the interpretation of those constitutions by state courts. Interpretation, of course, is the first and crucial step for a court; when a court finds a violation of its state constitution the court must then craft a workable remedy. This Article is intended to bookend Professor Williams’s work, discussing the application of themes in The Law of American State Constitutions to remedies.
Often, courts find a violation of a state constitution and then dive headfirst into a remedial scheme without an exit strategy. History shows that this leads to multiple remands, standoffs with political branches, and ultimately failure to remedy the problem at all. This Article argues that courts must fashion remedies that are capable of execution, drawing on lessons learned from the past. This piece examines how courts can craft effective remedies that may help avoid the quagmires that can place the law and its institutions at risk.
45 New Eng. L. Rev. 879

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