Litigating Imperfect Solutions: State Constitutional Claims in Federal Court

Constitutional Commentary, Forthcoming

29 Pages Posted: 30 Jan 2020

See all articles by Michael Morley

Michael Morley

Florida State University - College of Law

Date Written: 2020


In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit emphasizes the important role of state constitutions and state courts in protecting individual liberty. Suggesting that plaintiffs usually inexplicably overlook state constitutional claims, Sutton laments that, in his fifteen years on the federal bench, he has heard only a single case involving a state constitutional claim. The book does not recognize, however, the range of procedural and jurisdictional doctrines that either prevent federal judges from adjudicating state constitutional claims, or allow them to avoid doing so. These doctrines likely deter litigants from devoting time and resources to attempting to litigate state constitutional claims in federal court.

This Book Review examines and suggests reforms to these doctrines, including Pullman abstention, Pennhurst sovereign immunity, and district court discretion to decline supplemental jurisdiction over state-law claims under 28 U.S.C. § 1367(c). Though the Supreme Court has yet to articulate a single, coherent theory concerning federal courts’ proper role in adjudicating unsettled issues of state law, this Book Review’s initial recommendations would reduce friction between federal and state courts, eliminate arbitrary inconsistencies in current doctrine, and facilitate efficient adjudication of litigants’ claims.

Keywords: state constitution, constitutional law, individual rights, litigation, federal court, federal jurisdiction, abstention, Pullman, Pennhurst doctrine, Eleventh Amendment, sovereign immunity, supplemental jurisdiction, 28 U.S.C. 1367, state court, federal judge, state judge

Suggested Citation

Morley, Michael, Litigating Imperfect Solutions: State Constitutional Claims in Federal Court (2020). Constitutional Commentary, Forthcoming. Available at SSRN:

Michael Morley (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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