State Constitutional Provisions Research Articles

Who Is a Health Care Provider?: Statutory Interpretation as a Middle-Ground Approach to Medical Malpractice Damage Caps.

Debates over the effectiveness, constitutionality, and fairness of medical malpractice damage caps are as old as the laws themselves. Though some courts have struck down damage caps under state constitutional provisions, the vast majority hesitate to invalidate malpractice reform legislation. Instead, statutory interpretation offers a non-constitutional method of challenging the broad scope of damage caps without fully invalidating legislative efforts to curtail "excessive" malpractice liability. This Note examines the term "health care providers" in construing malpractice reform laws and identifies two predominant forms of statutory interpretation that state courts apply. In doing so, this Note offers recommendations for courts and legislatures to best balance the goals of the malpractice reform movement with patients' interests in recovery for medical injuries.

Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context

In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.
 Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women’s Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after fifteen weeks violates the Fourteenth Amendment’s Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion.
 Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.
 Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish.

Zombie State Constitutional Provisions

On November 3, 2020, voters in the state of Alabama approved the opaquely named “Authorize Legislature to Recompile the State Constitution Measure.” As described by the state’s Fair Ballot Commission, the ballot measure would permit the Alabama legislature to “(1) remove racist language” and “(2) remove language that is repeated or no longer applies,” among other things. The racist language in question? In one portion, the constitution still prescribed that “separate schools shall be provided for white and colored children.” Another section, though technically repealed by another amendment in 2000, remained in place memorializing that the “legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.” Though both these provisions were deemed unenforceable under the federal Constitution following blockbuster Supreme Court decisions, the provisions remained on the books. And even in 2020, the measure to eliminate this language passed only by a margin of 67% to 33%. Proposals to remove the language had twice failed since the year 2000—although the vocal opponents of those proposals objected allegedly not to preserve the language itself, but rather on the grounds that revising the language would have various unintended consequences for taxation or school funding. Alabama’s language may have lasted longest, but many other state constitutions contained similar provisions well into recent history. Today’s state constitutions remain full of sections that can be characterized as “zombie provisions”—clearly or arguably unenforceable clauses and amendments that stick with us, toward sometimes unclear effect and with potentially harmful consequences. The “zombie” phenomenon is becoming more well known in an adjacent context, although zombie-ism appears with (perhaps alarming) frequency in different strands of legal scholarship. Pertinent for our purposes, both judges and scholars have used the term “zombie laws” or “zombie statutes” to describe legislation rendered unenforceable by a constitutional decision or other laws, but that nevertheless “remain[s] on the books.” Even more recently, several scholars have identified judicial opinions as another area pervaded by the undead. Despite widespread rejection of disturbing precedents on topics ranging from slavery to women’s rights, these “artifacts from morally unrecognizable eras” persist and resurface in modern case law, raising questions about whether they should ever have precedential value, the harms continued invocation of these decisions may perpetuate, and how and whether courts should repudiate them. This Essay canvasses the zombie phenomenon in modern state constitutions. Although there are strong parallels to zombie legislation, state constitutions deserve their own treatment. To be sure, in many cases, subject matter addressed in one state’s code can be found in a different state’s constitution, like the multitude of amendments in Alabama’s constitution governing the playing of bingo games in various counties. And like statutes, direct democratic participation shapes the content of many state constitutional provisions. But as sources of law, state constitutions exist somewhere on a spectrum, with statutes at one pole and the federal Constitution on the other. As constitutions, these state documents are meant to apply for long durations and are subject to particular amendment procedures, making them more resistant to change than the average statute (though certainly not as fixed as the federal Constitution). These similarities and differences merit separate discussion of the zombie provisions of state constitutions and what, if anything, should be done about them. This Essay proceeds in three parts. First, it uses the state constitutions to examine the ambiguities in what counts as a “zombie,” identifying both core and more peripheral cases, as well as some constitutional provisions that do not quite qualify as zombies but nonetheless seem potentially worrisome. Next, it considers the harms that zombie provisions may cause, exploring these harms alongside those identified in related contexts ranging from covenants running with land to unenforceable or unenforced statutes. The final Part considers in detail both the arguments for and against removal and the different methods by which zombie provisions might be rejected or removed. Since 2020, there have been several efforts in individual states to remove currently unenforceable state constitutional provisions. This Essay is thus a timely exploration of what makes these provisions problematic as well as some of the nuanced and difficult questions involved in any decision to neutralize them.

The End of the War on Drugs, the Peace Dividend and the Renewed Fourth Amendment?

The War on Drugs profoundly eroded the Fourth Amendment. D.C. Circuit Court of Appeals Judge Harry T. Edwards summed it up in the midst of the war when he expressed “[his] growing concern about the degree to which individual rights and liberties appear to be falling victim to the Government’s ‘War on Drugs.’” So many of the Court’s Fourth Amendment decisions involved drugs and consistently shrank basic protections. Recent develops suggest that a broad coalition now recognizes that the War on Drugs was a failure. Indeed, legislation like the First Step Act, passed by this extraordinarily dysfunctional Congress, is a measure of that consensus. If the War is over or ending, will the Court breathe life back into the Fourth Amendment? Again, Judge Edwards raised the question in 1990, when he stated, “. . . when the war is over, we find that departures from constitutional norms, legitimized by the courts, have lasting and wide-ranging effects. Constitutional principles, once abandoned, are not easily reclaimed.” This article explores that question. This article reviews several areas where the post-Warren Courts eroded the Fourth Amendment, especially in response to the War on Drugs. It then turns to some more recent Supreme Court cases breathing some life back into the Fourth Amendment, including in areas involving modern technology. It then turns to several developments in state courts, especially in states that have legalized marijuana for medical or medical and recreational use. Those courts, whether by interpreting the Fourth Amendment or parallel state constitutional provisions, have started to rethink the War on Drugs. Both the Supreme Court’s expanded Fourth Amendment case law and the trend, if I am right that it is a trend, among state courts to reinvigorate Fourth Amendment protections, may undercut Judge Edwards’ prediction that the War on Drugs’ erosion of the Fourth Amendment will not be easily reclaimed.

COVID-19 Pandemic and Real Property Law: An Early Assessment of Relief Measures for Tenants and Residential Mortgagors

This Special Alert for Powell on Real Property looks at governmental measures, enacted on an emergency basis, regarding real property during the COVID-19 pandemic — especially moratoria on residential evictions and foreclosures. The Alert uses examples of COVID-19 emergency measures by state governments as well as examples of emergency measures by the federal government. It anticipates ongoing changes to such measures as the COVID-19 situation evolves, suggesting that we not wait until the governmental measures abate before considering their impact and implications. The current stream of property-related COVID-19 litigation promises to become a flood. Litigators are relying on provisions of federal and state constitutions to challenge the emergency measures on behalf of landlords, lenders, and business owners. The Alert identifies several key U.S. Supreme Court precedents that will almost certainly form part of the judicial response to those challenges. Those cases, discussed in the Alert, provide the foundation for judicial consideration of the constitutional legitimacy of eviction and foreclosure moratoria. ​

An Alternative Route to Voting Reform: the Right to Vote, Voter Registration, Redistricting and U.S. State Constitutions

AbstractThe U.S. Constitution reserves to states the responsibility for regulating most aspects of elections. Recently, the Supreme Court has weakened the tools for federal officials to challenge state elections practices under the Voting Rights Act and signaled a great deal of deference to state authority over election law. As a result, state legislatures’ latitude to regulate elections is constrained primarily by state constitutions. With voter ID laws and partisan gerrymandering commanding considerable attention in recent years, it is important to investigate the importance of state constitutions in this area. In this article, we discuss recent efforts by voting and election reformers to utilize state constitutions to challenge restrictive voting laws and partisan gerrymandering, whether by enacting state constitutional amendments or relying on state constitutional provisions in state court litigation. We also highlight the diverse and often underappreciated landscape of voting and election laws in the states and the resources available to reformers at the state level by analyzing state constitutional provisions bearing on the right to vote, voter registration, and redistricting.

Before the Federal Rights Revolution: The Impact of Northern State Civil Rights Laws in the First Half of the Twentieth Century

This investigation begins to rectify the absence of scholarship on statutory protections of civil rights in northern states prior to the breakthrough federal laws of the mid-twentieth century. While there is some limited cataloging of the existence of such statutes, their subsequent import is overlooked. I tackle the question by examining state supreme court cases in which these statutes were used by plaintiffs to combat acts of private discrimination in northern states. Using West’s Decennial Digest to find all relevant claims/decisions of the first half of the twentieth century, I uncover a modest universe of 56 cases. My aim is to assess whether statutory-based claims were more likely upheld than not, and whether plaintiffs armed with these statutes were more successful than those relying solely on federal or state constitutional provisions. I report positive and significant findings for both questions, showing that these statutes mattered in judicial fora. The statistical analysis is followed by a deeper consideration of the opinions to provide a richer picture of the deference shown to these statutes by state courts, and the reluctance for judges to grant relief for private discrimination in the absence of protective statutes.

The silent constitution of territory

Legal systems and states typically, and perhaps necessarily, have a limited geographical scope Territorial issues infrequently become the focus of constitutional scrutiny, and then usually in the peripheral instances of contested territorial claims and secession. Drawing on a newly compiled dataset of all state constitutional provisions addressing territory, I develop a new theory about the general relationship between laws and the geographic limits on their application. In particular, I advance an explanation both for why most constitutions do not seek to define the national territory with any specificity and for why some constitutions attempt that task. I argue that the silent conventions of geographically discrete groups determine the geographical scope of a constitution’s application. Constitutional delineations of the national territory are therefore unnecessary. Nevertheless, textual delineations of territory can achieve three purposes: they can clarify the silent conventions, express territorial claims over contested territory, and contract the scope of the constitutional order. This relationship between silent conventions and constitutional text has implications for the question of whether constitutions should include a right to secede and for how constitutions can function as sites of territorial contestation.

It's Time to Reinvigorate the Constitutional Claim for Physician Assistance in Dying

Since the Supreme Court's 1997 rejection of constitutional challenges to state bans on physician-assisted dying (PAD), dying patients' constitutional claims have been summarily rejected. This has been so whether the claimants rely on federal or state constitutional provisions relating to liberty and equal protection of the laws. I argue here that developments in end-of-life jurisprudence and practice over the last 21 years provide a foundation to refine and reinvigorate constitutional claims for PAD.

Federal and State Preemption of Local Privacy Regulation

In recent years, cities have started to regulate the collection, use, and disclosure of personal data by local government agencies. Much of this regulatory activity involves setting limits on police department acquisition and/or use of surveillance equipment and technology or establishing privacy principles safeguarding all data collection and use by city agencies. Obviously, the prospects for successful local policymaking in the privacy arena (“privacy localism”) extend no further than the preemptive effect of applicable federal and/or state law. If federal electronic surveillance law preempts local surveillance ordinances or city privacy laws, that’s game, set, and match. State preemption of privacy localism poses an even greater threat given that cities derive their power to govern not from any federal sources of law but from state constitutional and statutory provisions as interpreted by state courts. Thus, states can override local privacy initiatives in either of two ways: by enacting laws that preempt local privacy laws or withdrawing city authority to adopt such laws. In short, quite apart from its substantive merits, the success or failure of privacy localism largely rests on cities finding ways to avoid preemption and maintain local power. This Article examines in detail the threat of federal and state overrides of privacy localism. This is a narrow perspective on privacy localism but of vital importance for the reason just given: federal — and especially state — preemption has the capacity to stop local privacy regulation in its tracks. The inquiry into federal preemption of local privacy regulation requires a review of over two dozen federal privacy statutes. This turns out to be quite manageable because so few of them bear directly on local surveillance ordinances or local regulation of city data practices (which are the principle concerns of privacy localism). State preemption is harder to tackle given that there are approximately 700 state privacy laws, which makes for a crowded regulatory arena with a seemingly endless capacity to override local privacy law. The sheer number of state laws requires some simplifying assumptions to guide the state preemption analysis. Because Seattle and New York city are leading the way in regulating local police use of surveillance technologies and local data practices, this Article will mostly focus on Washington and New York state laws regulating (1) video cameras and/or facial recognition, automatic license plate readers (ALPRs), and drones; and (2) government records or personal data collected by government agencies insofar as they overlap with Seattle and New York City’s locally adopted privacy rules.

The Judicial Bookshelf

The Judicial Bookshelf DONALD GRIER STEPHENSON JR. I. “The fourteenth and fifteenth amend­ ments are in this respect a novelty,” remarked James Bryce as he interrupted a closely reasoned passage about federalism in his late nineteenth century examination of political systems in the United States. In particular, he observed the absence in the Constitution, as it came from the hands of the framers, of restrictions on state governments to safe­ guard basic civil rights and liberties. “These omissions are significant. They show the framers of the Constitution had no wish to produce uniformity among the States in government or institutions, and little care to protect the citizens against abuses of State Power.”1 The Fourteenth Amendment became part of the Constitution 150 years ago, after Secretary of State William Seward issued a proclamation on July 18, 1868, certifying that the amendment which had successfully cleared the Senate (33-11) on June 8, 1866, and the House ofRepresentatives (120-32) on June 13, 1866, had been approved by the legislatures of the requisite number of states. Along with the Thirteenth (1865) and Fif­ teenth (1870), the Fourteenth remains the constitutional legacy ofthe Republic’s greatest domestic crisis. Its sesquicentennial remains a reminder not only of the events and circum­ stances that marked the beginnings ofprofound systemic change in the American polity but also an acknowledgementthat students ofAmerican constitutional history and the Supreme Court would find it difficult to comprehend the last century and a half without this particular addition to the Constitution. II. Samuel F. Miller was the first Justice appointed from a trans-Mississippi state. For him, “[t]he most cursory glance” at the Reconstruction amendments “discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning.” As he explained for the majority in the Slaughterhouse Cases,2 “the one pervading purpose found in [the amend­ ments], lying at the foundation of each, and without which none ofthem would have been even suggested [was] ... the freedom of the slave race, the security and firm establishment THE JUDICIAL BOOKSHELF 349 of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”3 Moreover, as Miller might have acknowl­ edged, slavery itself had hardly been a novel issue for the Court. The slavery jurisprudence of three members of the High Court is the focus of Supreme Injustice by legal historian Paul Finkelman, visiting professor at the Univer­ sity of Pittsburgh School of Law at the time the book was published and presently presi­ dent of Gratz College.4 Without question, Finkelman’s book is hard-hitting. It may even be unsettling for those who customarily view the Court principally as a guardian offreedom and human dignity. Others will find it an illustration of the contemporary rejection by some of the forebears now deemed morally unworthy of their descendants. The book is also benchmark scholarship that no subse­ quent writing on the nineteenth-century Court and its members can easily (or wisely) ignore. Given the transforming events that have occurred since 1865 in the United States, it may be difficult for present-day readers to comprehend the scope of slavery—what some euphemistically called the South’s “peculiar institution.” Finkelman reports that, during John Marshall’s time on the Court, slavery virtually disappeared in the northern states through state constitutional provisions and legislative enactments. It declined from some 37,000 in 1800, just before Marshall went on the Bench, to about 1,100 in 1840, five years after his death. In contrast, slavery became further entrenched in southern states, with numbers rising from 900,000 in 1800 to about 2,250,000 at the end ofMarshall’s life. Because slaves were a form of property where individual slaves were bought, sold, and traded, such numbers meant that enormous wealth in the South was embedded within the institution. That wealth in turn was linked to all aspects of the economy, society, culture, and politics. From study of the slave cases in which Chief Justice Marshall, Justice Joseph Story...

Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas of law. Part I examines the Court's analysis of the harms of express exclusion to religious exercise, deemed harmful in itself and for the coercive pressure it exerts. Part II applies that reasoning to Establishment Clause questions involving express exclusions (e.g., the parsonage exemption) or coercion (e.g., legislative praters). Part III considers how the Trinity Lutheran Court's arguments play out in equal protection, particularly the case of denying service to LGBTQ customers. In short, this Essay is an attempt to find the silver lining of Trinity Lutheran Church, Inc. v. Comer.

A Lost Generation but Renewed Hope: Oregon's Pension Crisis and the Road to Reform

Like a number of other states, Oregon has been hampered in its pension reform efforts since 1996 by its state supreme court’s embrace of the “California Rule,” a doctrine arising, in Oregon’s case, from a misunderstanding of federal Contract Clause precedent. Under the misreading, states such as Oregon have been restricted from reducing pension benefits for government employees once they have been hired, even for work that lies in the future and may not be performed for decades and even where the benefit promises carried no time commitment. The Oregon Supreme Court has recently abandoned this position. However, it has been using its mid-1990s adoption of the rule as a means of suppressing the application of a set of state constitutional provisions designed to rein in pension spending, as well as later legislation aimed at drawing back some measure of unjustifiable pension-authority largesse in the late 1990s. The court must act swiftly now to reverse this legal position, revive Oregon’s constitutional provisions, and permit legislative action that will undo the consequences of the court’s long-term error. In the relative energy and foresight of its political branches and the belated but genuine recognition of error by the state court, Oregon can be a national beacon and guide sister states through the morass of pension reform.

Home Rule in an Era of Local Environmental Innovation

As 2016’s national election made clear, striking ideological differences between cities and their surrounding states exist in many parts of the country. One way this divide is manifesting itself is in state governments passing laws with the sole purpose of outlawing particular local conduct. For instance, recent state legislation has prohibited local governments from establishing a minimum wage, from prohibiting the use of plastic bags, and from protecting the rights of transgender individuals to use the bathroom of their identified gender. These state actions do not create substantive law; instead, they merely curtail the grant of authority—known, broadly speaking, as home rule—to municipalities.State override of local action in this way undermines the ability of local governments to address many kinds of harm. Local efforts to combat environmental issues seem particularly vulnerable to obstruction by state legislators. The trouble is, under traditional frameworks of state and local government law, this kind of targeted removal of local authority is likely justifiable. In consequence, legal scholarship on environmental localism has generally conceded failure within the home rule framework and looked only outside it for solutions to this problem. This Article explores whether acceptance of defeat in the face of state prohibitions on particular exercises of local environmental authority is warranted, and whether there is any path forward for local environmental policymaking within the traditional framework. Very generally, I propose that elements of environmental law—namely, state constitutional provisions and the public trust doctrine—may in fact offer a substantive basis for support of local authority in the face of targeted state removals of authority. By making these elements part of the home rule analysis, courts may be able to provide some protection against targeted removals of local authority.

Home Rule in an Era of Local Environmental Innovation

As 2016’s national election made clear, striking ideological differences between cities and their surrounding states exist in many parts of the country. One way this divide is manifesting itself is in state governments passing laws with the sole purpose of outlawing particular local conduct. For instance, recent state legislation has prohibited local governments from establishing a minimum wage, from prohibiting the use of plastic bags, and from protecting the rights of transgender individuals to use the bathroom of their identified gender. These state actions do not create substantive law; instead, they merely curtail the grant of authority—known, broadly speaking, as home rule—to municipalities.State override of local action in this way undermines the ability of local governments to address many kinds of harm. Local efforts to combat environmental issues seem particularly vulnerable to obstruction by state legislators. The trouble is, under traditional frameworks of state and local government law, this kind of targeted removal of local authority is likely justifiable. In consequence, legal scholarship on environmental localism has generally conceded failure within the home rule framework and looked only outside it for solutions to this problem. This Article explores whether acceptance of defeat in the face of state prohibitions on particular exercises of local environmental authority is warranted, and whether there is any path forward for local environmental policymaking within the traditional framework. Very generally, I propose that elements of environmental law—namely, state constitutional provisions and the public trust doctrine—may in fact offer a substantive basis for support of local authority in the face of targeted state removals of authority. By making these elements part of the home rule analysis, courts may be able to provide some protection against targeted removals of local authority.

The Right to Vote Under Local Law

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local right to vote — completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.

Jobless Capital? The Role of Capital Subsidies

Abstract Using tax abatements, financial incentives, and public investments to attract (or retain) firms is the primary economic development tool for many local governments. Often local job creation policies focus on increasing capital through grants, low-interest financing, and other economic development incentives. Theory predicts that capital subsidies induce firm behaviors that limit their job creation effects. This paper employs the Incentives Environment Index, constructed from state constitutional provisions that limit and structure the ability of state and local governmental entities to aid private enterprises, and county panels to test theoretical predictions on county capital expenditure and input mixes as well as industry establishment shares. The results indicate the act of increasing capital subsidy tools is associated with capital-labor substitution, decreased employment density, and changes in local industry mix. Results are robust to alternative empirical specifications and measures of capital subsidy availability.

Jobless capital? The role of capital subsidies

Using tax abatements, financial incentives, and public investments to attract (or retain) firms is the primary economic development tool for many local governments. Often local job creation policies focus on increasing capital through grants, low-interest financing, and other economic development incentives. Theory predicts that capital subsidies induce firm behaviors that limit their job creation effects. This paper employs the Incentives Environment Index, constructed from state constitutional provisions that limit and structure the ability of state and local governmental entities to aid private enterprises, and county panels to test theoretical predictions on county capital expenditure and input mixes as well as industry establishment shares. The results indicate the act of increasing capital subsidy tools is associated with capital-labor substitution, decreased employment density, and changes in local industry mix. Results are robust to alternative empirical specifications and measures of capital subsidy availability.

Fantasy Sports Legislation in New York: Can it Be Effective?

The paper reviews whether fantasy sports legislation in New York can be effective, given the State's constitutional provision banning gambling.

Fundamental Rights in a Post-<I>Obergefell</I> World

In this essay, I identify and critically examine several substantive criticisms raised by the dissents in the Supreme Court’s 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state.Specifically, I address three points raised by the dissents. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court’s holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly. This disregard of Glucksberg, according to one dissent, may lead to finding an analogous right to polygamous marriage. Second, that the right to marry sought in the case was a positive right, and that the Court thus erred in recognizing the right as fundamental under the Due Process Clause, which only protects negative rights. And finally, that the majority’s invocation of the Equal Protection Clause in tandem with the Due Process Clause in support of its conclusion was both doctrinally without support and violated the canon against unnecessarily deciding constitutional questions.I argue that the majority’s framing of the right was consistent with Glucksberg, demonstrating that the precedents upon which it was built, while requiring specific framing, do not call for the narrowest framing possible, and in turn that the majority’s approach does not necessitate a finding of a right to polygamous marriage. Furthermore, while agreeing with the dissents that the Due Process Clause protects only negative rights, I demonstrate that the Equal Protection Clause has historically protected positive rights. Because marriage has historically consisted of a bundle of rights, both positive and negative, the majority’s invocation of both clauses was both supported by precedent and necessary to the decision. Finally, I demonstrate that the two clauses, working in tandem, prevent states from eliminating civil marriage in the future, even if they eliminate it for same-sex and opposite-sex couples alike.