The Future of Parity
42 Pages Posted: 20 Apr 2005
This article is a contribution to a conference on "Dual Enforcement of Constitutional Norms." It focuses on the adjudication of federal constitutional rights in state courts. The conventional wisdom in many quarters is that given the countermajoritarian nature of many such rights, and the presumption that most state judge are subject to electoral pressures, that state courts are not in parity with federal courts when it comes to litigating and vindicating such rights. The best known proponent of this view is Burt Neuborne in his "The Myth of Parity" article in 1977. Taking exception to some aspects Neuborne's thesis was an article by the late Paul Bator, "The State Courts and Federal Constitutional Litigation," in a symposium in the William and Mary Law Review in 1981. Bator considered, among other things, why state courts should be permitted to adjudicate federal rights at all, when state courts should be the initial forum for litigating federal rights, and when and how federal courts should defer (if at all) to prior adjudication of federal rights in state fora.
The present article revisits the issue of parity in the context of re-evaluating Bator's article. Part I of the article discusses the empirical studies of parity that have appeared since the publication of the Nueborne and Bator articles. Part II focuses on the prospect of disuniformity in the application of federal rights by the large number of state courts, and problems associated with the ability of the U.S. Supreme Court and lower federal courts to monitor that application through the certiorari and habeas corpus process, respectively. Finally, Part III addresses how a variety of prospective changes to state court institutions affect parity. This includes the convergence of civil and criminal procedure in federal and state courts, and possible reforms of judicial selection and election processes for state courts.
Keywords: Parity, Constitutional Law, Habeas Corpus, Federal Courts
JEL Classification: K19, K39, K41
Suggested Citation: Suggested Citation