Ohio Joins the New Judicial Federalism Movement: A Little To-Ing and a Little Fro-Ing
Marianna Brown Bettman
University of Cincinnati - College of Law
November 15, 2009
Cleveland State Law Review, Vol. 51, p. 491, 2004
U of Cincinnati Public Law Research Paper No. 09-37
This article discusses the approach the Ohio Supreme Court has taken since it announced it was joining the New Judicial Federalism Movement in 1993. Under this new federalism, as the Ohio Supreme Court explained in Arnold v. Cleveland, “As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.” Using the schema and nomenclature employed by Professor Jennifer Friesen in her book State Constitutional Law: Litigating Individual Rights, Claims and Defenses as a starting point, this article makes three contentions. First, despite the bold announcement in Arnold, the court takes a while to “get” it — except for Justice Craig Wright, who got it right away and was really the leader of this movement, and its most sophisticated analyst, until his retirement from the court. (Justice Pfeifer has replaced Justice Wright as the heir to the New Judicial Federalism Movement.) Second, on the criminal-law side of the ledger, especially in the area of search and seizure, the court has intentionally chosen to remain in lockstep with federal precedent, because of the conservative bent of a majority of the justices about the rights of criminal defendants. Finally, on the civil side, the court has been more willing to sally forth — but even when heading beyond the lockstep approach, it has not really engaged in the kind of meaningful analysis that Professor Friesen suggests should characterize these approaches.
Number of Pages in PDF File: 14
Keywords: Ohio, Ohio Supreme Court, New Judicial Federalism Movement, rights
JEL Classification: K14, K19, K49
Date posted: November 14, 2009
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