The Neglect of State Law

At PrawsBlawg, John Pfaff posts about state law and the government shutdown.  Pfaff argues that the government shutdown, at bottom, is a state-by-state issue, since states are responsible for drawing their districts.  Some states have gerrymandered their districts into states of ridiculousness, and Pfaff contends that this is the cause for the state of Congress.

Notably, Pfaff cites Iowa as an example of a state with reasonable district-drawing practices.  Also notably, these reasonably-drawn districts put lawmakers responsible for the shutdown, like Representative Steven King, in office.

I am happy to see Pfaff use the shutdown as an example of a broad neglect of focus on state law and politics in the world of legal scholarship and commentary.  Pfaff notes:

The legal academy loves—just loves—to write about the federal system. For every article on state criminal law issues there are dozens and dozens on federal criminal law, even though state prisons hold nearly 90% of all prisoners and federal criminal law is a unique beast that provides no insights about state criminal justice.

And I bet there have been close to a quadrillion words spilled on the US Supreme Court, looking at it from every doctrinal, methodological, empirical, Kremlinological, and any other “-ical” angle. Yet nowhere near that much attention has been paid to state supreme courts, which likely play just as big, not a bigger, roles in our day to day lives.[] If it’s federal, it must be important. And if it’s state, well….

I get it. The major law reviews aren’t going to publish an article about Kansas law, and an article about state policies won’t get cited by the US Supreme Court (but it may get discussed by a state supreme court, which isn’t nothing). Plus it is just so much easier: there is just one federal policy for every issue, not some chaotic swirl of 50 different approaches. But all this could just mean that our incentives are misaligned and that we are generally overlooking what really matters and what is really driving policy.

Pfaff is right to call out scholarly neglect of state laws.  All too often are the complexities of interstate variations either oversimplified or overlooked in favor of federal laws and cases.  I know from my own work writing about criminal law that there can be some pretty notable variations and that accounting for these variations with 50-state surveys rather than a few examples is a tedious and mind-numbing process.

I hope that more professors take the effort (or make their research assistants take the effort) to focus on the various state laws.  And I hope even more that the big law reviews take note of articles that exhaustively account for the differences among the laws of the fifty states (especially in areas of the law like self-defense).