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Reconsidering Rational Basis Equal Protection Review Under the Wisconsin Constitution

15 Pages Posted: 6 May 2011  

Lawrence Friedman

New England Law | Boston

Date Written: May 4, 2011


In a 2006 address to the Marquette Law School community, Judge Diane S. Sykes criticized a handful of decisions from the 2004-2005 term of the Wisconsin Supreme Court, the court on which she sat before being appointed to the United States Court of Appeals for the Seventh Circuit. She argued that these decisions - particularly those decided under the state constitution - revealed a lack of appropriate restraint on the court’s part, given the nature of the issues before the court. She also lamented the failure of the bar and the academy to attend closely to the court’s work. This latter complaint is a familiar one to students of state constitutional law: despite the fact that state constitutional decisions are no longer a novelty, state constitutional jurisprudence does not command a great deal of public attention. This essay takes up Judge Sykes’s charge, to the end of addressing the work of the Wisconsin Supreme Court as a contribution to a larger discourse about the metes and bounds of American constitutional law. The focus is on one of the cases Judge Sykes viewed as exceptionally troubling: Ferdon v. Wisconsin Patients Compensation Fund, in which the Wisconsin high court struck down the statutory limit on non-economic damages in medical malpractice cases. Part I begins by discussing the Wisconsin Supreme Court’s decision in Ferdon. Part II turns to Judge Sykes’ two central contentions: first, that the Ferdon court abandoned deferential rational basis equal protection review under the state constitution; and, second, that the decision in Ferdon reflects nothing so much as rank judicial activism. This essay argues, to the contrary, that Ferdon represents a nuanced and principled understanding of rational basis equal protection review, one that falls well within the bounds of reasonable - and modest - judicial decision-making in the state constitutional context. The essay concludes with some thoughts about the role that Ferdon and similar state supreme court efforts may play in enhancing our understanding of the ways in which state and federal constitutional law operate to allocate governmental authority vis-à-vis individual rights and liberties.

Keywords: state constitutional law, equal protection, new judicial federalism

Suggested Citation

Friedman, Lawrence, Reconsidering Rational Basis Equal Protection Review Under the Wisconsin Constitution (May 4, 2011). Rutgers Law Journal Vol. 38, No. 4, 2011. Available at SSRN:

Lawrence Friedman (Contact Author)

New England Law | Boston ( email )

154 Stuart Street
Boston, MA 02116
United States
617-451-0010 (Phone)

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