Why the Local Matters: Federalism, Localism, and Public Interest Advocacy !"#$%"&$'()*+$,*%%&-./$$ 0&1&-*+2.34$'()*+2.34$*51$$ 678+2)$95%&-&.%$:1;()*)# Papers from the Eleventh Annual Liman Colloquium! at Yale Law School, 2008 Published by the Liman Public Interest Program at Yale Law School and the National State Attorneys General Program at Columbia Law School CONTENTS ABOUT THE CONTRIBUTORS..............................................................................iii INTRODUCTION: ACTION ACROSS THE LANDSCAPE OF FEDERALISM ........ 1 Kathleen Claussen Class of 2010, Yale Law School; Member, Arthur Liman Public Interest Program Student Board Adam Grogg Class of 2010, Yale Law School; Member, Arthur Liman Public Interest Program Student Board Sarah French Russell Associate Research Scholar in Law and Clinical Lecturer in Law, Yale Law School; Director, Arthur Liman Public Interest Program I. THE ROLE OF LOCAL LEADERSHIP: REVISING THE HISTORY AND UNDERSTANDING THE PRESENT Civil Rights History Before, and Beyond, Brown ............................11 Risa Goluboff Professor of Law, Professor of History, Caddell & Chapman Research Professor, University of Virginia School of Law American Federalism and the American Civil Liberties Union ..... 21 Norman Dorsen Stokes Professor of Law, and Co-Director, Arthur Garfield Hays Civil Liberties Program, New York University Law School; former President, American Civil Liberties Union Susan N. Herman President, American Civil Liberties Union; Centennial Professor of Law, Brooklyn Law School II. STATES AND CITIES AS ADVOCATES FOR THE PUBLIC INTEREST The Progressive City ........................................................................39 Richard C. Schragger Professor of Law, Class of 1948 Professor in Scholarly Research in Law, University of Virginia School of Law !"#$%"&$'()*+$<%2++$,*%%&-./$$ San Francisco and the Rising Culture of Engagement$ in Local Public Law Offices0&1&-*+2.34$'()*+2.34$*51$678+2)$95%&-&.%$:1;()*)#......................................................................... 51 Kathleen S. Morris Visiting Assistant Professor, Rutgers School of Law—Camden ! (2009 – 2010); Founding Executive Director, San Francisco City Attorney’s Affirmative Litigation Task Force Local Leadership and National Issues ............................................67 Richard Briffault Joseph P. Chamberlain Professor of Legislation, Columbia Law School III. COORDINATION, BOTH VERTICAL AND HORIZONTAL New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws......83 Judith Resnik Arthur Liman Professor of Law, Yale Law School Congressional Authority and Constitutional Default Rules in the Horizontal Federalism Context .................................................. 101 Gillian E. Metzger Professor of Law, Columbia Law School States Rule! or, States’ Rules ..........................................................115 Robert Hermann Partner, DelBello Donnellan Weingarten Wise & Wiederkehr, LLP IV. DEFINING THE PUBLIC INTEREST: THE ROLE AND NETWORKS OF STATE COURTS What Are the Locals Up To? A Connecticut Snapshot.................. 129 Ellen Ash Peters Former Chief Justice, Connecticut Supreme Court State Supreme Courts as Places for Litigating New Questions ... 137 Randall T. Shepard Chief Justice, Indiana Supreme Court State Courts in the Global Marketplace of Ideas .......................... 153 Margaret H. Marshall Chief Justice, Supreme Judicial Court of Massachusetts AFTERWORD: ALTERNATIVE VISIONS OF LOCAL, STATE, AND NATIONAL ACTION........................................................................................................ 167 James E. Tierney Director, National State Attorneys General Program, Columbia Law School APPENDICES: LIMAN AT THE LOCAL LEVEL, MARCH 6–7, 2008, YALE LAW SCHOOL Colloquium Program ..................................................................... 173 Colloquium Participants ................................................................ 177 Editorial Board Kathleen Claussen & Adam Grogg, Class of 2010, Yale Law School Rachel Deutsch & Ethan Frechette, Class of 2009, Columbia Law School About the Contributors Richard Briffault is Joseph P. Chamberlain Professor of Legislation at Columbia Law School. He is the coauthor of Cases and Materials on State and Local Government Law (West Pub. 7th ed. 2009). Kathleen Claussen is a member of the Yale Law School Class of 2010 and of the Arthur Liman Public Interest Program Student Board. She received her B.A. from Indiana University as a Wells Scholar, and her M.A. from Queen’s University Belfast as a Mitchell Scholar. At Yale, Kathleen is co-Editor-in-Chief of the Yale Journal of International Law and a Coker Fellow. Norman Dorsen is Frederick I. and Grace A. Stokes Professor of Law, Co-Director of the Arthur Garfield Hays Civil Liberties Program, and Counselor to the President at New York University. He was President of the American Civil Liberties Union from 1976 to 1991. Risa Goluboff is Professor of Law and History and Caddell & Chapman Research Professor at the University of Virginia. Her scholarship focuses on the history of civil rights, labor, and constitutional law in the 20th century. She is a 2009 recipient of the John Simon Guggenheim Foundation Fellowship in Constitutional Studies and the author of The Lost Promise of Civil Rights, which won the Order of the Coif Biennial Book Award for 2010 and the James Willard Hurst Prize for the best work of sociolegal history in 2007 from the Law and Society Association. Professor Goluboff holds degrees from Harvard (A.B.), Yale (J.D.), and Princeton (M.A./Ph.D.), and she clerked for Guido Calabresi of the U.S. Court of Appeals for the Second Circuit and Stephen G. Breyer on the U.S. Supreme Court. Adam Grogg is a member of the Yale Law School Class of 2010. He received his B.A. from Williams College in 2004 and his M.Phil. from Oxford University, where he was a Marshall Scholar, in 2006. At Yale, Adam is Vice President for Publicity and Outreach of the American Constitution Society, an Editor of the Yale Journal of Law and the Humanities, and a member of the Arthur Liman Public Interest Program Student Board. Susan N. Herman is the President of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School. Her publications include a book on the interplay of federalism and anti- terrorism programs (Terrorism, Government, and Law: National iii About the Contributors Authority and Local Autonomy in the War of Terror (2008)), The Right to a Speedy and Public Trial (2006) (part of a series on the Constitution), sections of other books, and numerous articles in law reviews and non-legal publications on topics relating to the Constitution, the Supreme Court, criminal procedure, and law and literature. Robert Hermann is a partner at DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, in White Plains, New York, and served from 2007 – 2009 as the Director of the Governor’s Office of Regulatory Reform in New York. Margaret H. Marshall is Chief Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts. Before her appointment to the bench in 1996, Chief Justice Marshall was Vice President and General Counsel of Harvard University, and prior to that a partner in the Boston law firm of Choate, Hall & Stewart. Chief Justice Marshall is a 1976 graduate of the Yale Law School and a member of the Yale Corporation. She was born and educated in the Republic of South Africa, graduating from the University of Witwatersrand (Johannesburg) in 1966. Chief Justice Marshall came to the United States in 1968. Gillian Metzger is Professor of Law at Columbia Law School. Her scholarship focuses on the intersection of administrative and constitutional law, with a specialization in federalism and privatization. Her prior articles include: Administrative Law as the New Federalism, 57 Duke L.J. 2023 (2008); Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468 (2007); Facial Challenges and Federalism, 105 Colum. L. Rev. 873 (2005); and Privatization As Delegation, 103 Colum. L. Rev. 1367 (2003). Kathleen S. Morris was the founding Executive Director of the Affirmative Litigation Task Force at the San Francisco City Attorney’s Office. She also co-founded the San Francisco Affirmative Litigation Project at Yale Law School and was a Visiting Lecturer at Yale in the Spring of 2008. Ms. Morris has taken leave from the City Attorney’s Office to spend the 2009 – 2010 academic year writing and teaching at Rutgers School of Law—Camden, where she is a Visiting Assistant Professor. Ellen Ash Peters, a graduate of Swarthmore College and the Yale Law School, was a member of the Yale Law School faculty from 1956 to 1978 iv Why the Local Matters and a justice of the Connecticut Supreme Court from 1978 to 2000. She was Chief Justice from 1984 – 1996. Judith Resnik is Arthur Liman Professor of Law at Yale Law School and Founding Director of the Arthur Liman Public Interest Program. Her recent books include Migrations and Mobilities: Citizenship, Bor- ders, and Gender, co-edited with Seyla Benhabib (2009), and Federal Courts Stories, co-edited with Vicki C. Jackson (2009). Her recent es- says include Ratifying Kyoto at the Local Level: Sovereigntism, Feder- alism, and Translocal Organizations of Government Actors (TOGAs), co-authored with Joshua Civin and Joseph Frueh, 50 Ariz. L. Rev. 709 (2008). Sarah French Russell is an Associate Research Scholar in Law, a Clinical Lecturer in