The Myth of Superiority

Posted: 17 Feb 2000

Abstract

This Article re-considers the relationship between federal and state courts as fora for the resolution of civil rights claims.

In his renowned 1977 article, The Myth of Parity, 90 Harv. L. Rev. 1105, Professor Burt Neuborne set forth the argument that the federal courts were institutionally superior to state courts in handling federal constitutional claims. In the succeeding 22 years, gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts. This might, of course, be nothing more than a consequence of the political orientation of the federal judges appointed by Presidents Reagan and Bush during these years.

However, this Article argues that the gay rights experience reveals certain institutional characteristics of state courts that make them systemically better-situated (or at least no less well-situated) to demonstrate empathy for minority concerns in certain carefully-defined situations. In so concluding, the Article urges that forum-shopping civil rights attorneys abandon an irrebutable presumption in favor of federal courts.

JEL Classification: K41

Suggested Citation

Rubenstein, William B., The Myth of Superiority. Constitutional Commentary, Vol. 16, No. 3, 1999. Available at SSRN: https://ssrn.com/abstract=205228 or http://dx.doi.org/10.2139/ssrn.205228

William B. Rubenstein (Contact Author)

Harvard Law School ( email )

1545 Massachusetts
Areeda 323
Cambridge, MA 02138
United States
617-496-7320 (Phone)

HOME PAGE: http://www.billrubenstein.com

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