Trial Magazine

During AAJ’s 2018 Annual Convention in Denver, the Pound Civil Justice Institute held its 26th annual Forum for State Appellate Court Judges. One hundred forty judges from 36 states attended the one-day complimentary judicial education program focused on “State Court Protection of Individual Constitutional Rights.”

In recent years, people’s ability to seek redress in civil court has been increasingly constrained as tort “reform” legislation, pretrial and other procedural hurdles, and forced arbitration have become more prevalent. The forum focused on how legislative, judicial, and regulatory changes have restricted access to the courts—and how state courts can use the powers granted to them by their state constitutions to protect and enforce their citizens’ rights.

The forum included papers from nationally recognized legal scholars; commentary from panels of academics, judges, and practitioners; and small-group discussions. Hon. Monica Márquez of the Colorado Supreme Court was the opening speaker, and Hon. Goodwin Liu of the Supreme Court of California delivered the keynote speech during the program lunch.

The morning session featured Professor Robert Williams (Rutgers Law School), who discussed his paper “State Constitutional Protection of Civil Litigation.” He noted “that the vast majority of civil litigation in America takes place in the state courts—and that the great bulk of the American constitutional system’s treatment of societal, economic, and moral issues” rests in state constitutions and statutes. Williams explained that state constitutions sometimes provide protections not available in the U.S. Constitution. Because the Seventh Amendment was never incorporated into the due process clause of the Fourteenth Amendment, he observed, the federal constitution does not guarantee the right to trial by jury in state courts—making state constitutional provisions affirming this right and state court enforcement of it all the more important. Panelists included Hon. David Schuman (University of Oregon School of Law), Hon. Noma D. Gurich (Supreme Court of Oklahoma), John E. Cuttino (DRI—The Voice of the Defense Bar), and Robert S. Peck (Center for Constitutional Litigation).

"As important as the individual rights are, they mean nothing if they cannot be implemented and protected."

The afternoon session featured Professor Justin Long (Wayne State University Law School), who presented his paper “State Constitutional Structures Affect Civil Justice.” Long discussed how a state’s constitutional structure affects how the rights prescribed by state constitutions are enforced—and that this often differs from how a federal court would enforce these rights. “As important as the individual rights are, they mean nothing if they cannot be implemented and protected. State constitutions create the institutions that are capable of providing injured people a remedy, or not,” Long explained. Panelists included Professor Jonathan Marshfield (University of Arkansas School of Law), Hon. Judy Cates (Court of Appeals of Illinois), John Lebsack (White and Steele), and Andre M. Mura (Gibbs Law Group).

During the keynote address, Hon. Goodwin Liu drew from “State Constitutions and the Protection of Individuals Rights: A Reappraisal,” his 2017 New York Law Journal article that revisits Justice William Brennan’s famous 1977 Harvard Law Review opus on judicial federalism. Liu advised the judges, “Constitutional interpretation is a mutually informative enterprise of elaborating not uniquely federal or uniquely state principles, but rather uniquely American principles.” He also emphasized the power of state courts when interpreting their constitutions, noting, “[An] accumulation of state decisions that depart from federal precedent may induce a second look by the Supreme Court.”

The 2018 forum’s papers, as well as a 50-state compendium of state constitutional provisions, statutes, decisions, and scholarship on the right to trial by jury and the right to remedy, are available to download at www.poundinstitute.org/content/judges-forum.

About the Pound Institute

The Pound Civil Justice Institute is a national legal think tank that works to give lawyers, judges, legal educators, policymakers, and the public a balanced view of issues affecting the civil justice system. The institute has a membership of attorney Fellows. Every member of the bar in good standing who supports a strong civil justice system may become a Pound Fellow. For more information, call (202) 944-2841 or email info@poundinstitute.org.