Monday, January 09, 2006

The cure for Utah Supreme Court's laments? Imagination

State of the Beehive and Crescat Setentia both discuss Justice Nehring's plea for state constitutional claims in Brigham City v. Stuart. CS hypothesizes that law schools are to blame for the dearth of state constitutional claims because they only teach law students how to argue from case law, of which there is very little concerning state constitutions.

Twenty years ago, the Vermont Supreme Court had the same lament and catalogued various rhetorical approaches to state constitutional claims in State v. Jewett, 500 A.2d 233 (Vt. 1985):

One approach to constitutional argument involves the use of fundamentally historical materials. Mr. Justice Holmes has said that "historic continuity with the past is not a duty it is only a necessity...."

. . .

Historical argument may also touch upon the legislative history of a particular provision, "or on the social and political setting in which it originated, or on the fate of the [provision] in subsequent constitutions."

. . .

The textual approach to state constitutional argument needs little explanation. A state constitutional clause may confer rights not bestowed by the United States Constitution or contain language that differs from parallel provisions in the National Charter so that the former invites interpretation on independent grounds.

. . .

The advocate may also use a sibling state approach in state constitutional argument. This involves seeing what other states with identical or similar constitutional clauses have done.

. . .

Another approach involves the use of economic and sociological materials in constitutional litigation.

The court notes that its list is not all inclusive and that "[t]he imaginative lawyer is still the fountainhead of our finest jurisprudence."

Anybody know an imaginative lawyer?


Blogger Charley Foster said...

It's true. You have to get out of standard brief-writing mode to write a suppression memo. And that's what makes it intellectually satisfying. It's a fantastic excuse and opportunity to indulge your interest in state history and the history of state constitutional drafting and ratification in general.

8:15 AM  

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