Taking State Law Seriously: A Re-Assessment of Our Obsession with All Things Federal
Peter Nicolas, Jeffrey and Susan Brotman Professor of Law
May 8, 2008
Good afternoon everyone and a very welcome. This is our last in a
series of installations of endowed professorships here at the Law
School. Each one of these has been very, very festive and has been very
well attended. Thanks to you all, our colleagues, our friends from our
extended Law School community, students, everyone for being here.
to recognize one particularly distinguished guest among us, Bill Gates.
Sr., the Class of 1950, Bill has served as a Regent since 1997 and was
a partner in the firm of Shidler McBrew Gates & Lucas that after
some mergers with the old Seattle law firm of Preston Thorginson now
Ellis produced the current firm of K & L Gates. Mr. Gates, it is
always wonderful to have you here. And just to recognize distinguished
members of our Alumni Board and Law School Foundation Board as well.
we have said on each of these occasions, the importance of these
endowed professorships simply can't be overstated. It's just a
wonderful way of providing some material support to our colleagues
whose achievements in their career make them meritorious of having a
professorship. But, also just the life of these professorships as
institutions is very important to us.
In this case, the
first holder of this professorship, the Jeffrey & Susan Brotman
Professorship, was our late colleague, Joan Fitzpatrick, and now with
Peter Nicolas being installed in this professorship we see that we have
two wonderful incumbents who are already adding luster to this
professorship. As it goes forward and the work that gets done in a
sense it will become deeper and fuller because of the association of
the work of everyone who has held this professorship. Providing support
for our colleagues' research, research assistants and just the very
fact of having a named professorship after your name is a nice thing,
and it is one of those things that just helps to raise our profile in
all of the scholarly and professional communities that we are members
Without more, I will just introduce Susan Brotman who
will be saying a few words about the Brotman Professorship, its origins
and its intentions. Again, it is a wonderful thing that the Brotmans
have done. I want to especially recognize Dean Hjorth who worked very
closely with Susan and Jeffrey back in 1997 and really put wind in the
sails of this idea to create this professorship. His friendship with
the Brotmans and leading them to recognize this is a wonderful way of
achieving their purposes is so appreciated.
Susan has served
on the University of Washington Foundation Board from 1992 to 2005 and
was the Chairman of the Foundation Board from '95 to '96. She and Jeff
were just enormously important friends to the effort to create this
building where we are now so gloriously installed, especially when
prices were going up and the project had to be deferred holding major
fund raising events at their home and being real champions of this
project to see it through to successful completion. It is so
appreciated; a great friend of this University, a great friend of the
arts community here in Seattle serving on the Board of the Pacific
Northwest Ballet and also the Seattle Art Museum and, again, very
important in major fund raising efforts for those two important
Her husband, Jeff, is one of our
graduates, a Founder and Chairman of Costco, a Regent of the University
since 1998 and a 1967 graduate of the Law School and their nephew,
Adam, also one of our graduates. A lot of ties and it just adds a sense
of additional pleasure to the day.
So, Susan, I will turn the podium over to you.
Thank you, Dean Hicks. Hello, everyone. Jeff sends his regrets and is
very sorry that he was unable to be here today, but he joins me in
congratulating Professor Nicolas. We would like you to know that Jeff
views his intellectual training as a foundation for his success. He
developed self-confidence, friendships and the necessary skill sets for
success. Critical thinking was the key, and I hear him say that to
students who are thinking about going to Law School.
'91 we established the Alternative Dispute Resolution in honor of
Jeff's parents because Jeff felt that that was their style of resolving
conflict, and he wanted to do something to honor them. In 1999 the
University was focusing on recruitment and retention of faculty, and it
was then when we, knowing Dean Hjorth and having conversations about
what we might do, we set out to establish this endowed professorship. I
am so happy that Dean Hjorth is here and his wife and Bill Gates as
well because they are instrumental for our involvement in the Law
School recently in our contributions both in this professorship as well
as this building.
I love the stories Dean Hjorth tells about
Jeff and Law School. They have been quite entertaining for me. In the
Socratic method of teaching in Dean Hjorth's federal tax class, my
understanding is that he would ask questions, provide no information
and hammer away at the student until the student either came up with
the answer or left the room.
As I understand, Jeff frequently did not know the answer and did leave
the room. At the end of that term Professor Hjorth asked Jeff how he
did on the final, and when learning that Jeff was one of the top
scorers in that final he was so exasperated, he just left.
They often joke about the fact that even though Jeff was not prepared in class he did manage to make it in life.
And I know, Ron, that he does owe a lot of gratitude to you and did
appreciate so much how much dedication you gave to the Law School and
was so pleased to have had the opportunity to learn from you and then
work with you later on.
endowed professorships like ours can attract nationally recognized
scholars to the faculty, like Professor Nicolas. Jeff and I know that
these professorships enable the Law School to honor and recognize the
accomplishments of faculty members who have been here for many years
and/or whose teachings and scholarship have enriched the lives of the
students and enhanced the reputation of the Law School, both regionally
This Law School is the cornerstone of great
legal minds and legal education. Jeff and I feel that it is so
important to do what we can to help the University School of Law be
successful, and this was the way we felt we could make a difference.
Professor Peter Nicolas is a prime example of why we created this
endowment. We thank you all for being here to celebrate this day with
us, and we are honored to be able to install the second Jeff and Susan
Brotman Professor of Law today, Peter Nicolas.
And now, it
is my pleasure to introduce Professor Mary Hotchkiss who will be
speaking about and introduce Professor Nicolas. Mary Hotchkiss is a
Senior Lecturer and Director of Academic Advising at the University of
Washington School of Law. Professor Hotchkiss teaches Advanced Legal
Research, Information Policy, and Employment Law.
received a BA from Duke University, an MS from Catholic University and
a J.D. and LLM from George Washington University. She is very active in a
variety of professional and community associations. Professor...
Thank you Susan. It is my pleasure to introduce our honoree, my
colleague and friend, Peter Nicholas, The Jeffrey and Susan Brotman
Professor of Law.
first met Peter Nicholas when he came to interview in January 2000 for
a full time teaching position. I attended his colloquium, his topic
was, "The Use of Preclusion Doctrine, Anti-suit Injunctions and 409
convenience, His Missiles in Trans-national Intellectual, Property
Now, I don't know about you. But when I write the title of his talk
before he arrived, I had just the foggiest of notions what he would be
talking about. I was pretty sure that it would deal with federal court
jurisdiction but that's about it.
he began his presentation, Peter opened with the basic framework that
laid out his primary points. He managed to take a topic that was a
complete mystery to me and make the material totally accessible. After
the presentation, Peter offered reprints of his article on the topic. I
took one and I was pleasantly surprised to find his writing every bit
as clear as his lecture. Indeed I could hear his voice in his writing.
My instinct from this first exposure to Peter was that he would excel
In February 2000, we hired both Peter Nicholas
and Steve Calendrella. I had been hired the year before. As junior
faculty members, Peter, Steve, and I were side offices of the 6th floor
of Condon Hall, the charming, concrete, edifice, on Campus Parkway. As
new kids on the block, we spent many hours at Condon preparing for
class, talking about teaching, talking about writing projects and
getting to know each other.
One thing I remember from
Peter's first office was a news clipping that was mounted and hanging
on his wall. It was a story about Peter when he served on the Ann Arbor
City Council. I was intrigued that Peter found the time to run for city
council while working on his master's degree in Public Policy and
serving as a teaching assistant.
He won that first race and
then served the second term as well. Talk about putting course work
into action. Why just learn about Public Policy when you be in a
position to make public policy? Reading about his service on the city
council clued me in. Peter is also going to have an impact in faculty
Now as a side note, my mom grew up in Anne
Arbor. She was quite impressed when I told her that my new colleague
had served on the city council. Actually more impressed than by my
appointment to teach at the law school.
I recently asked Peter when he became interested in the law. He said
that while he enjoyed studying Economics and Public Policy as an
undergraduate and graduate student, he did not find other either
sufficiently interesting to pursue a PhD. On the other hand, during his
tenure at the city council, he was exposed to law as a discipline. He
became intrigued by the interplay of law, the legislative process, and
went to Harvard Law School where he excelled in the classroom and in
extracurricular activities such as the Law Review and Duke court
competitions. I was not surprise to learn that he received both best
oralist and best brief in the Ames Duke Court competitions.
many students developed strengths in either writing or oral advocacy,
Peter was the ultimate double threat, an exceptional writer and a
brilliant oral advocate. After law school, Peter clerked for Judge
Michael Bourdain, on the US Court of Appeals for the first circuit in
Boston. As a program notes, Judge Bourdain who had been a law professor
encouraged Peter to pursue a career in legal education. I thank the
In preparing this introduction, I asked Peter
when he became interested in teaching. He shared that his interest in
teaching was actually long standing. In early elementary school, he
used to set up a classroom and teach his younger brother whatever he
had learned that day.
Can't you see, Peter Nicholas, a young
Peter Nicholas earnestly explaining addition or subtraction to a
somewhat bewildered pre-schooler.
Peter is an exceptional teacher; this was the word on the street even
before he won the Philippe A Trautmann Professor of the Year Award in
2003, his third year of teaching. He has been nominated for the award
almost every year he has taught here.
lectures are known to be exceptionally clear and well-organized. Peter
is a demanding professor who challenges students to think critically
whether in evidence, conflict of laws, federal courts, international
civil litigation or gay rights and the constitution.
courses have conflict concepts and require close reading of statutes
and rules. So Peter is constantly thinking about ways to make the
material more accessible. One technique he employs involves the use of
a large, pink, stuffed bunny.
At some point, during the
quarter that Peter teaches evidence class, he brings the bunny to class
and he places it on a table near the podium. He then begins the
lecture, as he delves into material asking students questions and
responding to their inquiries, he never refers to the bunny. The topic
of the day is "Testimonial Evidence".
At some point when the
class is examining a case, where the judge instructs the jury to
disregard testimony or evidence that has been stricken from the record,
Peter tells the students, "Pay no attention to the bunny. Pay no
attention to the bunny." The lesson is, "Disregarding Testimonial
Evidence" is just as challenging as disregarding a large pink bunny
that is sitting there in front of you.
When Peter did not
find any of the evidence casebooks on the market work just right for
his class, he wrote his own. His casebook published in 2005 has been
adopted by a number of schools. In 2006, he published his second book,
one that focused on Federal and Florida Evidence Rules. This was the
first in a series of handbooks that organized the federal and state
evidence rules with editorial commentary for quick consultation in the
classroom or the courtroom.
He has since published handbooks
for Texas and New York as well. Peter has served the Law School with
distinction. Over the past eight years, he has served on many
committees. He has chaired the Executive Council, the Leadership Group,
then advised the Dean on governance issues and chaired the Academic
Both groups have a heavy workload and
both face challenging politically sensitive situations. While he has
strong opinions and shares them freely, he also excels at listing and
looking for carefully crafted solutions.
Peter and I don't
always agree [speaker pauses] but he listens carefully and he comments
thoughtfully. I admire him for his principles and integrity. He is true
to himself even if that truth places him in a minority. But what about
the personal side? Where is the dirt?
Peter has a wonderful
collection of ties and specially shirts. He has a fondness for Charlie
Brown. Perhaps they are brothers separated at birth. I am always
delighted to see a tiny Charlie Brown embroidered on his Oxford shirt
and there is one today or the Peanuts character on a favorite tie.
also has a fondness for Snoopy collectibles again, this is perhaps the
Charlie Brown in him, or maybe like Snoopy he imagines himself as a
World War I flying ace eroically triumphing over evil.
Peter is also fond of heirloom China including Bunnykins figures, figurines, I had to look it up, I...
He loves a good auction. And as we heard at Pat Cousler's installation,
he can make impulse purchases that have nothing to do with China or
Snoopy collectibles. It is absolutely true that he bought a piano
before he had even taken a lesson. He learned to play though and he
learned to play within a short period of time.
loves to travel; born in Beirut, Lebanon he spent most of his childhood
in Rochester, New York. My sense is, as soon as he could afford to
explore beyond New York, he did. Within the past few years he has
traveled to Australia, Thailand, Hong Kong, Tanzania, South Africa,
England, and many cities in Europe.
Most of these recent
trips had been with his partner, Mike who shares Peter's love for
travel. Peter hopes to travel to more exotic locations such as
Antarctica someday. But in the short term, he will settle for a trip to
Cleveland next month for a conference on "Teaching Evidence".
is a man of many talents. He is a gifted teacher, a superb scholar, a
dedicated leader at the law school, a thoughtful colleague, an
inspiration, and a cherished friend. I am delighted that he has been
recognized today by both the Brotman's and the Law School community.
Students, faculty, staff, and honored guest, it is my privilege to introduce my friend and colleague, Peter Nicolas.
Thank you Mary, that was just really, really wonderful and as with all
our wonderful introductions that we have had of our new professors. It
is so easy to see and recognize the person in the introduction. So the
heart and energy that has gone into this Mary, thank you and Peter, our
colleague our cherished colleague.
a treat this is. And I have a medal here that is just an emblem of the
Professorship of that is being awarded and it simply says, "Jeffrey and
Susan Brotman Professor of Law." So, please join me in congratulating
Peter at this moment.
Well, good afternoon everyone and thank you so much for taking the time
out of your day to share this moment with all of us. I was snickering
up here, I apologize. I have been watching this series of receptions
now for the past year. And for some reason, every time I see Dean Hicks
put this medal on someone's neck I immediately think of the victory
ceremony at the end of Star Wars for those of you are star wars...
And here we have Princess Lea played by our fearlessly 13 Greg Hicks
hanging the medal around Hans Solo or Luke Skywalker. And at first I
was like, "No, no, no, I am not going to do this. This is crazy. Why am
I getting a medal, it's not like I save the galactic republic or
anything like that. Unlike Jackie and McMurtry I have not been able to
save anyone who is innocent from being imprisoned. I just do my job. I
teach, I write some articles. I write some books, I said, I am not
going to take the medal. That is crazy."
I said, "OK, I probably should not do that. I probably should think
about it and see if there is any reason that I should earn a medal."
And I said, "Wait, wait I remember that I had to go, not only I have to
go, I have to chair some really long, very difficult faculty meeting
several times ago." And you know what? "That's it. I deserve a medal. I
will accept and will wear the medal, so thank you Dean Hicks for that.
want to thank Mary for the introduction she managed in fewer than eight
minutes to tear down the tough guy reputation eight years in the
making. It is a good thing I did not tell her about my Hello Kitty
collection, that would be terrible...
I of course want to thank the Brotmans, Jeff, and Susan for their
generosity in donating money for creating this Professorship as well as
their history of generosity to the law school and to the University of
Washington, as well as the greater Seattle community.
I feel a very close connection and it feels as if I am to be installed
as a professor that the Brotman won is very appropriate. When I first
move to Seattle, Dean York had a party at his house to celebrate all of
the new hires and as I was meeting different people, a very energetic
individual that I think many of you know came up to me and after
introducing ourselves. She immediately asked me if I have ever been to
Costco and I have no idea what she was talking about.
And she kept at it and every time I saw her, she would mention Costco.
And I think, "Who is this crazy woman who every word out of her mouth
is Costco and the Brotman's and things like that." She told all these
wonderful things about the Brotman's and for those who don't know, Mary
York is that individual, here in today. And by in short order was able
to confirm two things. Costco indeed is as amazing as Mary suggested it
was and Mary is as crazy as I understood...
those of you who are not familiar with Costco and I doubt that there
are that many people on the audience but as you may know, it is
somewhere where you can go and get things at really, really inexpensive
prices. In fact, I have no idea how you were able to donate money for
this professorship with some of the margins that you guys have at
But you do not go in to Costco and buy a roll of
paper towels. You buy 16-rolls of paper towels. And you don't buy a
couple of packages of toilet paper, you buy 36 rolls. And so,
everything is done in bulk and that is how I think they were able to
pass along the savings to the rest of us. And you may not know that you
can actually get fine jewelry at Costco as well. You can find it on the
East side I know this... [audience laughing] I saw this $90, 000
diamond ring there. I said, "Wow, someone is going to come in at Costco
and find a $90, 000 dollar ring."
They also sell wedding
rings and at first. As I just stand there, I don't think that their
business was doing fairly well. They only found that they were able to
get sales in places like El Dorado, Texas and Colorado City, Arizona
and few cities scattered throughout Utah. And they said, "Oh, gosh
maybe we can't follow our regular business model. I guess we are not
going to sell them in four packs anymore." So instead they are
By the way in case you go in at Costco, that was
a joke. They never sold them in four packs but that is the thing about
Costco, right, if I did not tell you it was a joke, you might have
thought that they really did sell that stuff.
All right, so
many people to thank, the School of Law'sDevelopment and External
Relations staff have done a wonderful job of putting this together.
There are several people involved: Laura Paskin, Sheri Ireton,
Stephanie Cox, Anna Houston, David Sieber, Cheryl Wilson, Yoshiko
Sahiki, Cay Yen and Beth Sanders. There are so many staff people here
today and throughout the building who have really made it possible for
me to get my work done. Lenny Con, I'm sure you're somewhere back
there. You're the one who keeps these classrooms running on a daily
basis. Our secretarial staff: my former secretary, Wendy Condiotti, and
Hannah Lee, who's my current secretary.
And the library
staff; the library staff here is unbelievable. I will be lying on the
couch at night and I will be working on something and I'll just shoot
off an email. Like, I understand George Washington wrote a letter to
someone, sometime in the 1700s, about the Supreme Court and I'd like to
read it. Within two hours, I get an email with a PDF file that has the
letter. It's just unbelievable and in particular there have been
several individuals I want to recognize for their assistance: Judy
Davis, Ann Hemmins, Nancy McMurer, Cheryl Niperg, Ripa Turnquist and
Mary Wisner. I want to thank the CLE staff, and in particular Cathy
Kline, for making sure that anyone who comes today gets a half a CLE
To thank my current and former students, some of
whom are here today for inspiring me to teach and for helping me as
research assistants. To thank my colleagues, my senior ones, for voting
to hire me and for putting up with me since then. And then to thank a
couple of former deans, Former Dean Yorthbess was already recognized
for working with the Rottmans to create this professorship. Former Dean
Knight for naming me to this professorship, and then finally to thank
my family for their love and support: my parents, my brother, and my
partner Mike, who's here today.
And now, I actually have to give you some laws and talk about substance.
So no more jokes, I think we're done with that for now. The title of
today's talk is "Taking State Law Seriously: A Re-Assessment of our
Session with All Things Federal."
who do I mean by "our"? By "our, " I'm referring to those of us who
teach law primarily. Of course our obsession has an impact on how our
students learn and practice law and ultimately on the clients that they
represent. And by "our" I do include myself. I have found myself to be
guilty in the past of this offense of obsessing about federal law in my
teaching and research. Many of my early articles are essentially how to
make anything a federal case.
So I've certainly been guilty of what I'm talking about. So I want to
do two things. First, to address why I think faculty at US law schools
focus primarily on federal law. And then, to discuss three virtues of
providing students with greater exposure to state law. I'll state those
briefly. First, state law as a form of comparative law. Second, state
law as a greater protector of individual rights. And finally, state law
as a check on federal power.
this first question I need to clarify, when I say faculty don't pay
much attention to state law. Obviously faculty who teach areas that are
dominated by state law, areas like contracts towards property and
family law, do certainly spend a great deal of time dealing with state
law. My question really has to do with those areas in which neither
federal nor state law predominates, -- areas such as constitutional
law, criminal procedure, civil procedure, evidence, and employment law
I can think of about five reasons why it may be
that we focus on federal law. First, that's what our professors did
when we were students, right? So, monkey see, monkey do.
We are engaged in inertia based on what we experience.
there's a perception that state law lacks prestige. That somehow it
doesn't have the gravitas that federal law or international or
intergalactic law may have.
We tend to associate state law with lesser law schools, so we shy away from it.
Transcription by CastingWords
it's not as easy to determine. Most textbooks don't put state law in
their books, and so if you want to talk about state law, you've got to
go look for something to supplement your books with.
there are too many states, right? It's easy if you focus on federal law
- one level of government, one set of case law to look to. If you look
at states, now you've got at least 50. If you want to add territories
in, there are a couple more things to look at. So that's a practical
Finally, and I think this is probably the biggest
reason why, it is a belief that state law is essentially meaningless.
In other words, to the extent you're interested in, let's say, civil
rights, or the rights of the criminally accused, there's this belief
which was perpetuated by our teachers, and I think to some extent that
we may continue to perpetuate, that state law is at best neutral
towards, and in many instances hostile towards those rights. It's only
federal law that provides any sort of meaningful protection. OK?
I'm going to now go over those three reasons I think looking at state
law is a virtue, and hopefully in the course of doing so respond to all
of those objections, or at least reasons why we might be reluctant to
teach state law.
The first one, I said state law as
comparative law. What I'll say here is even if you don't care at all
about state law, you don't have any interest in teaching it or learning
it, and all you really care about is making sure you teach or learn
federal law. There's none the less virtue to studying state law as a
form of comparative law.
When you're talking about
comparative law, that's international. Indeed we have many, many
excellent scholars is this building who engage in comparative law,
comparing the US legal system with those of various Asian, Islamic,
European, and African countries. Yet, I would argue that some of the
reasons for what I would call "international comparative law", which is
what many of my colleagues do, applies with equal force to what I would
call "intra-national comparative law".
I can identify at
least two values that comparative law generally has. One, which is to
attain a deeper knowledge of the legal systems that you're comparing.
And second is to perfect the legal systems that you're comparing. And
so, again, even if all you care about is US federal law, I believe you
can use state law to achieve three purposes. One, learn federal law.
Two, interpret federal law. Three, improve federal law.
an example, I will talk about what I've done in my evidence course and
in some of my evidence research over the years. So, of those three
methods within state law as a form of comparative law, let's start with
state law as a tool for learning federal law.
Most of us who
teach evidence focus on the federal rules of evidence, and it makes
good sense. No matter what state our students might practice in, as
long as they're in federal court, it's a common set of rules that
they're going to use in any federal court in the country. Most state
evidence codes are similar to the federal rules of evidence, and so if
students master the federal rules, it's not that hard for them to pick
up the differences in their particular state.
although I focus on the federal rules, I require my students each year
to do some research and writing assignments where I ask them to take a
particular federal rule of evidence and compare it to a given state
rule. Sometimes I'll give everyone in the class the same state rule;
sometimes we'll divvy it up and everyone becomes an expert on a
particular state. And every once in a while I got pushed back, a
student says, "Hey, why do I, I have come to school in Washington. I
don't care about North Dakota or Wyoming evidence law. I am never going
to practice in those states." And I then, "One..." I told them. "...you
never know what you are going to do." Right, like one student once, she
even said, "Don't even dare teach me the federal rules of evidence. I
am only going to practice in state court in Washington." And I was
really puzzled, I said, "So you are going to check the citizenship of
your party and his opponents and make sure that...and you are going to
withdraw if they will move the case to federal court."
was really interesting but students are sometimes so certain about what
they are going to do but the truth of course is it does not really
matter because I can just as well make up a state law and give it to
them and ask them to compare it. And the point is, that there is no way
they can prove they can show me the way that North Dakota's law or
Wyoming's law is different from the federal rule if they don't first
master what the federal rules says.
And one of the things I
found is that by requiring students to engage in this exercise, they
tend to become much more careful readers of law. It enhances their
mastery of reading because when you are just asked to read something,
you kind of sometimes give it a once over. If you actually have to sit
down and compare it to something else, you have to do kind of
word-by-word comparison looking at the punctuation, word choice and the
And so I found it is a way to get students to master
what I ultimately want them to learn which is the federal rule, OK, so
one of the virtues of state laws compared of law.
using state laws a tool for interpreting federal law. Any area of law
that involves the interpretation of text and it could be a
constitution, it could be a statute, it could be a rule presents all
sorts of conceptual ambiguities, word choices used and when I ask,
"What does equal protection mean in the constitution or the phrase
prosecution for homicide in the heresy exception for dying
declarations. What exactly did they mean by that phrase?"
sometimes you have a well-developed body of case law at whatever level
it is that you are interpreting in which case you can simply turn to
the case law but sometimes you can not. For example, you may have a
newly enacted federal rule which has borrowed language from
pre-existing state rules and there is not yet a well-developed body of
law. It may be that just certain types of cases do not come up that
often in the federal courts.
For example, run of the mill
murder and sexual assault cases do not come up that often. And so, if
you want to interpret one of the federal evidence rules that deal
specifically with those types of cases you may have the difficulty.
one of the things that often occurs that I said, "Two is that the
federal and state rules may be worded very similarly and you can use
the pre-existing state decision or law as a tool for trying to
interpret the similar terms that are used in the federal rules.
again something that could be persuasive to a court if you are trying
to interpret ambiguous federal law. And finally, state law can be used
as a tool for improving federal law. And as I said, one of the goals of
comparative law is to perfect the legal systems that you are comparing.
And I would view the rules of evidences as one area that is certainly
like many areas of law right for improvement.
rules themselves were developed by actually studying pre-existing
common law, both the federal and state level and also looking at
pre-existing state evidence codes that were in existence at the time.
And since the federal rules were codified, most of the state have
followed suit those that did not have codified rules. And they have
modeled their codes after the federal rules but have made improvements.
One, of eliminating ambiguities that were created by the drafters of
the federal rules of evidence and two, I think improving some of the
perceived unfairness that some people have found with the federal rules
One of the things that surprised me as I have
done some of my research on state evidence laws, is that even what you
might term law and order types of states like Texas and Florida, the
first two that I wrote books about, when I looked at their evidence
codes and I compared them to what I knew about the federal rules. I
said, "Gosh, if I were on trial for crime I might actually prefer to
have my case governed by the Texas or Florida rules than the federal
And I think that is surprising to a lot of people. I
think that is not something that would jump out. And so a third reason
to study state evidence laws is to discover ways in which you might
improve the federal laws in which they are modeled. After all, things
like evidence rules are nothing more than policy and logic. And the
frameworks of the federal rules did not have a monopoly on either of
those commodities. And so looking to the wisdom of the drafters of the
state rules can be enlightening. And it makes really an endless loop,
right, because the federal rules were drafted on some state evidence
codes and then in turn, state evidence codes were drafted on the
federal rules again, making improvements on pre-existing code. And so
yes to keep the loop continuously spinning.
So, again, as a
form of comparative laws, state law can be very valuable if you want to
learn federal law, if you want to interpret it, or if you want to
improve it, so my first, first virtue of state law.
second virtue that I see to studying state law is that it can be a
source of greater protection for individual rights. And at most law
schools, when you take a course that involves vindicating civil rights
or the rights of the criminally accused, the focus is typically
primarily, or exclusively on federal sources of law. Habeas corpus
relate for example, for those who are in state custody.
have taught federal courts for a number of years and we teach students
how to navigate the new ones as a federal habeas law but not state
habeas law. Similarly, courses in criminal procedure typically study
the fourth, fifth, and sixth amendments of the US Constitution but
typically do not spend time looking at analogous provisions in state
constitutions. Constitutional law courses looking at individual rights
claims such as reproductive rights, the right to die, sex
discrimination, sexual orientation discrimination, and the like again,
focus on 14th Amendment of the federal constitution but not much
attention paid to state constitutions.
And so why do we do
this? Well, again we do this because our textbooks do this in part,
right. But then the question is why do our textbooks do this, the
textbooks, which might have been written by our professors or our
professor's professor. There are some reasons that this focus on
federal law has been perpetuated. And I think there are really two
phenomena that account for that focus. I think a lot of it has to do
with the experience during the civil rights era. And I will say between
the 50's and the 70's when two things really were taking place. One,
many particularly southern states were denying citizens of civil rights
and many state courts were complicit in that denial of rights
particularly in the case of African-Americans that was one trend that
And second, the federal bench was
particularly receptive to rights-based claims. The Supreme Court as
well as the lower federal courts were staffed with justices and judges
who broadly interpreted the scope of various federal constitutional
provisions as well as things like the federal habeas corpus statutes.
so, this led to the belief as I said that state law was essentially
meaningless. And that if you want to further civil rights or the rights
of the criminally accused, you better learn and master federal law.
to large extents those underlying facts were in fact, a sound basis for
a focus on federal law at that time. But I would argue that two trends
have emerged make those assumptions no longer accurate. And these
trends started on I say, somewhere in the 1980's.
federal bench has become, I would say, hostiler at least not terribly
friendly towards rights-based claims. And it is demonstrated this in
various ways including narrow interpretations of the court's own
jurisdiction for example. Say we are not going to hear those cases or
creating abstention doctrines that allow them simply to not exercise
jurisdiction even though they admit they have it, a broad
interpretation of the scope of sovereign immunity, a narrow
interpretation of federal constitutional provisions which is the 4th,
5th, 6th amendments, the equal protection clause, the due process
clause, and the laws of reason or probable reason is there has been a
trend to conservative appointments and that simply change the face of
the federal bench over the last several decades.
So that is
one trend that occurred. The same time a second trend has emerged which
is that state courts in many cases, not only are not hostile toward
rights-based claims but indeed are proving to be more receptive to them
than are the federal courts, largely by breathing new life into their
own constitutions by interpreting equivalent provisions in their
constitutions more broadly than the federal courts have interpreted the
analogous federal provisions.
And I will give you two
examples of where I think a failure to take state law into account
harms our students and their clients. First with respect to the
criminally accused, I am going to look at habeas corpus review and
criminal procedure. With regard to habeas corpus review, as I said for
years I have taught all the ins and outs of the federal habeas
statutes, it makes for great exam hypotheticals because those things
are truly complicated.
But in all honesty it is almost
completely useless to most individuals between the changes made to the
federal habeas statutes in the 1990's as well as the Supreme Court's
interpretation of the same. You get an interesting intellectual
exercise. But by the end of it, you either arrive at one or two
conclusions. One, no jurisdiction or two, no relief but right either
way your client is out of luck.
And while certainly worth
teaching the federal habeas corpus statutes, it might be of some
utility to add to the set of things that students learn something about
state habeas corpus focus review. State habeas regimes are sometimes
broader than the federal habeas regime. They are more willing to do
things like interpreting claims for such things as "near innocence"
something that the U.S. Supreme Court has said is not a sufficient
basis for obtaining habeas corpus relief.
So, there is one
are where I think looking to state law can be instructive. Criminal
procedure, again, over the past several decades I would say that the
federal courts have taken much narrower where interpretation of the
Fourth, Fifth, and Sixth Amendments. And for those of you who follow
the Supreme Court's decisions that had a recent case just a couple of
weeks ago, Virginia versus Moore which involve a reversal of a decision
by the Supreme Court of Virginia. The Supreme Court of Virginia held
that a conviction at a lower trial court had to be reversed on the
ground that evidence used in that prosecution violated the Fourth
Amendment. The U.S. Supreme court said, "No it did not."
went and I look carefully at the Supreme Court's decision. I looked at
the lower court decisions and I tried to see whatever briefs I could
find. And it seems like at no point in the litigation did anyone
whether on the court or on behalf of the defense, nobody thought to try
to argue that maybe the Independent Virginia Constitution ought to be
invoked and might in fact provide relief independently of any federal
It seems obvious if you look at the
decision that the Virginia high court felt that this was violative of
this individual's constitutional rights. And they are certainly the
last word on the Virginia constitution but I think because so often the
focus is on federal constitutional rights. There was not really much of
an effort to try to persuade the court. Maybe they ought to make an
alternative voting, "This violates the Fourth Amendment of the
constitution of the United States. And if it does not we find
independently that it violates our own analogous provision in our
Just a couple of examples of places where one
can more effectively advocate for your clients. In the field of gay
rights which is an area as Mary mentioned, that I teach in research in.
That is a prime example of an area in which a focus on federal law by
attorneys which again is based no doubt on their own education work to
the detriment of their clients unfortunately.
Some of you
may have studied the case of Bowers vs. Hardwick. That was a federal
constitutional decision upholding Georgia's law banning sodomy and the
case was upheld by the U.S. Supreme Court in a civil rights action
filed in a federal court asserting federal constitutional claims which
followed in the footsteps of movements brought by other social groups
such as women, and African-Americans who historically relied on federal
courts' way to challenge state laws that were viewed as discriminatory.
it was a harsh lesson, right, because this decision gets enacted. It is
invoked by courts and government says it means for discriminating
against gays and lesbians. But through these experience gay rights
advocates learned a lesson that they did not learn at law school but I
think is something that we ought to teach people in law school which is
that states have independent constitutions that can be more protective
of individual rights.
After Bowers kind of closed off the
federal constitutional claims, at least for awhile, a variety of
challenges were brought in state courts. And they were largely
successful. Many high courts struck down their own sodomy laws based on
an independent interpretation of their own due process clauses in their
Indeed the very law in Bowers versus Hardwick
was struck down as unconstitutional by the Georgia Supreme Court based
on the Georgia Constitution about 12 years after Bowers was decided.
And so, the state courts by raising this claims essentially, people
found another avenue in which to advocate on behalf of their clients.
my other point about state laws tool for improving federal law
ultimately came to pass in 2003 when the U.S. Supreme Court took the
rare step of reversing its prior decision in Bowers versus Harwick, and
in doing so it in part relied on the fact that it said, "Wait a minute.
All these state courts have been interpreting language in their
constitutions that looks very much like our constitution, and they all
came out differently than we did." Maybe, that suggested that there is
something that we did wrong in that earlier decision.
having being stung once, gay rights advocates have been more careful in
dealing with the issue of same-sex marriage and had a number of
successes in state courts challenging laws that ban same-sex marriage.
It is hardly unanimous, but there have been positive decisions in
states like Hawaii, Vermont, New Jersey and Massachusetts. Of course,
there have been setbacks, some by constitutional amendment, and there
is our own Supreme Court in Washington, but nonetheless it is an
independent avenue for trying to develop these rights.
also worth remembering that in the heyday of federal courts as a font
of individual rights they were really followers rather than leaders.
After all, by the time the Supreme Court in Loving versus Virginia
struck down Virginia's law making it a crime for white and blacks to
intermarry that was old news. The California Supreme Court had struck
down such a law 30 years before so even at that time the federal courts
were followers rather than leaders in the area of individual rights.
And I would argue more so today.
So, final point, state law
as a check on federal power and that sounds strange to a lot of people.
They say, "No, no, I've learned about checks and balances". It is the
other way around. It is the federal law and the federal courts serving
as a check on state power, and that's what we learned in federal courts
in civil rights in common law and criminal procedure.
students are surprised when I tell them that actually the U. S.
Constitution as originally designed wasn't really that concerned with
what state governments were doing. The big fear was the federal
government and what risk it may pose to individual rights and freedoms.
That was the initial focus of, for example, the enactment of the Bill
of Rights. Now, to be sure the enactment of the 14th Amendment changed
the calculus in that it also expressed a concern for restraining abuses
of power by the states, but that didn't mean that the constitution was
no longer concerned with abuses of power by the federal government.
when people think about trying to vindicate federal rights, whether it
is being invoked against the federal government or the states, they
think well, naturally you pursue these claims in federal rather than in
state courts. There really is nothing natural about that intuition
because it assumes that federal courts will exist and that they will
entertain your claims, but if you read the constitution carefully there
is nothing in the constitution that requires any federal courts to
exist other than the U. S. Supreme Court.
You are familiar
with the Western District of Washington, the Ninth Circuit. None of
those have to be there. Even if they are there, Congress can
selectively strip them of jurisdiction. The U. S. Supreme Court, the
only court that has to exist, has limited jurisdiction to begin with,
primarily appellate jurisdiction, and Congress even has the power to
limit that. In recent years Congress has elected to try to exercise its
power in these regards, attempting to strip the federal courts of
jurisdiction over discreet categories of cases and in particular
stripping the courts of the power to issue writs of habeas corpus for
those who are in custody of the federal government, for example, people
being held indefinitely without a trial.
Now, to some extent
they have been thwarted in that regard because the federal courts have
avoided reaching some tough constitutional issues involving the
suspension clause, the clause of the constitution that generally
prevents the writ of habeas corpus from being suspended by simply
interpreting it as that wasn't really what Congress intended to do even
though the title of these laws is usually "Stripping the federal court
from jurisdiction to issue writs of habeas corpus". And while there is
a debate about what the suspension clause covers, almost everybody
agrees that at the very least it covers those who have been detained
without having had an opportunity to have a judicial proceeding, in
other words, those extra traditionally detained by the federal
So, what if they do? What if they finally say
they have gotten rid of the power of the federal courts to issue writs
of habeas corpus? Does that mean the writ has been suspended? I would
argue that if you study history, the answer is no and you should be
looking to state courts. The state courts, in fact, should resume their
historical role and intended role of being able to issue writs of
habeas corpus for those in federal custody.
is nothing in the constitution that envisions federal courts existing
in the first place. Because of the limits on what the Supreme Court can
do, it really only has what is known as appellate jurisdiction, and
they are not really able to issue original writs of habeas corpus for
those who haven't had a judicial proceeding at first. And so, in fact,
what the constitutional structure envisions is that the state courts
will be there to resume their power to issue writs of habeas corpus. Of
course, that means if that possibility occurs it is important to be
looking to state courts and also to state law to determine what the
potential scope of that writ of habeas corpus would be because
ultimately that is for them to define under state law.
to wrap up; go back to those reasons that people don't teach state law.
Hopefully, as to that one reason, the belief that state law is
essentially meaningless, I hope with the examples I have given today I
have been able to persuade you otherwise.
In terms of some
of the other objections, perceived lack of prestige, I think that tends
to only be a problem if you focus exclusively on your own state's law,
and I would argue there is no need to focus on just your state's law.
More interesting is to just pick a few random states that have
interesting, different provisions in their constitutions or different
interpretations and use those as examples. In terms of too many states,
you can do what I do. Enlist your students to each take on a state, and
that makes it a heck of a lot easier or you don't have to cover all of
the states, just enough to remind students that there is this other
body of law.
Then, some of those other reasons, our own
professors did it; it is hard to determine state law. Again, hopefully,
the presentation has shown you that it is worth breaking out of the
In conclusion, I would be lying to you if I
said that state courts and state law are a panacea and that resorting
to them will guarantee success because it won't, but I guess the point
is that if you ignore state law it's like driving a car with one eye
shut. You may still get into a car accident even if you keep both eyes
open, but you do stand a better chance of avoiding one if you keep them
both open while you're driving.
Thank you very much again. I appreciate you all coming, and I think now it's time for chow, if I am correct.