Reactive Responses: The Complementary Role of Federal and State Courts

Abstract

The recent revival of state constitutional law has contributed significantly to the development of a dynamic judicial federalism. While interaction between federal and state courts is hardly novel, acknowledgments of reciprocity have occurred more frequently than in the past. The Burger Court's receptivity to state judicial activism inaugurated an era marked by creativity as well as cooperation. Thus far, major departures from established practices have been limited to a readily identifiable and recurring number of state courts. All the same, the case studies included in this article range across a variety of factual contexts and explore an impressive array of links, both explicit and implied, between the federal and state courts. A disquieting new requirement, introduced as the result of a 1983 Supreme Court decision, exacts of state judges an unambiguous declaration of reliance on independent state grounds as the price of ensuring federal nonintervention. Whether judicial federalism will continue to flourish within so confining a framework remains problematic.