This Article begins to remedy that absence by providing a structural account of local courts that situates them as distinct institutions within the justice system. Because local courts are influenced by all levels of government—federal, state, and local—they exhibit a radical diversity—not just between states but within them, and not just in the way that they operate but in their organizing principles. The Article links the many problems experienced by local courts—chronic underfunding and a lack of oversight cause problems that run deep—with the state and federal structures that shape local-court function and administration. On the state side, the Article analyzes hand-coded, raw survey data from the National Center for State Courts to describe the interactions between local courts and administrative bodies within state judicial branches. Although states differ, administrative distance between state and local institutions joined with the rarity of appeals from local-court judgments makes local courts meaningfully independent from the state system. Federal law compounds this independence by sheltering local courts from external scrutiny. Judicial federalism doctrines like preclusion, abstention, and habeas corpus require federal courts to defer to the legal and factual findings of local courts. Federal enforcement doctrines like standing and immunity protect local courts from legal reform efforts.

The Article then reevaluates our theories of judicial federalism in light of the diversity and problems of local courts. It argues that the values of judicial federalism invoked by both courts and scholars rely on the fiction that state courts are monoliths. In fact, the reality of state courts—including the diversity and relative obscurity of local courts—frustrate these values. Instead, the Article argues that the more valuable conceptual function of local courts is not normative but rather descriptive: they provide us with an understanding of the justice we have, not the justice we aspire to or the justice required by law. They—and not federal courts—are the starting points from which we should define and evaluate our system of justice.

Introduction

Ten years ago, I visited the courthouse in Wilkinson County, a small, majority-Black county in the southwest corner of Mississippi. It had an old and genteel Beaux-Arts façade and stood in the center of a town square, lending a sense of history to the diners and clothing stores around. Inside, dust yellowed the windows, blotches deepened the color of the carpets, holes in the ceilings exposed electrical wires. Marriage records labeled “White” and “Colored” through 1984 filled the county clerk’s bookcases. Many forms of history.¹ 1.Courthouse architecture is a fascinating topic in its own right. See Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (2011); Norman W. Spaulding, The Enclosure of Justice: Courthouse Architecture, Due Process, and the Dead Metaphor of Trial, 24 Yale J.L. & Human. 311, 315 (2012) (“[T]he American concept of due process of law is itself intimately bound up with the location, design, and use of law’s administrative space.”). For recent images of local courts around the country, see American Courthouses: A Photo Archive by John Deacon, http://www.courthouses.co/ (last visited Apr. 12, 2020) [https://perma.cc/K2MQ-UYMN].Deteriorating physical conditions of local courthouses are not unique to Wilkinson County and go beyond “complaints about the color of the carpeting.” ISBA Special Comm. on Fair & Impartial Courts, Ill. State Bar Ass’n, Report on the Funding Crisis in the Illinois Courts 20 (2013) [hereinafter ISBA Report], https://www.isba.org/sites/default/files/­committees/Report%20on%20the%20Funding%20Crisis%20in%20the%20Illinois%20Courts.pdf [https://perma.cc/B54U-CMAP]. An Illinois State Bar Association report, for example, describes local courthouses with “mold visibly growing on the ceilings” and courthouses with heating and air conditioning systems so ineffective that “some rooms . . . are almost as warm as a sauna and other rooms . . . are ridiculously cold all on the same day.” Id. at 20 & 20 n.45. For more examples, see generally infra Section I.B.Show More

Local courts like this one—including both general-jurisdiction trial-level courts and limited-jurisdiction hyperlocal courts like municipal and justice courts² 2.The diversity of local courts makes defining the category an important part of the analysis. For a more detailed explanation, see infra Part I.Show More—are overwhelmingly likely to have both the first and final words in any dispute within the justice system. Litigants file tens of millions of cases in local courts each year, outnumbering cases filed in federal court by a factor of over two hundred.³ 3.See infra Part I.Show More Few litigants who receive local-court judgments appeal the matter further.

The justice we possess is thus largely the justice created by local courts. It is a diverse justice. Because local courts are influenced by all levels of government—federal, state, and local—they exhibit a radical diversity—not just between states but within them, and not just in the way that they operate but in their organizing structures. We tolerate, even celebrate, that diversity. We believe it encourages the “creative ferment of experimentation.”⁴ 4.See Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 634 (1981) (“Do we not derive enormous benefits from having a variety of institutional ‘sets’ within which issues of federal constitutional law are addressed? The creative ferment of experimentation which federalism encourages is not irrelevant to the task of constitutional adjudication.”).Show More And sometimes, local courts vindicate this promise. At their best, local courts can be laboratories for innovative approaches to justice tailored to the communities they serve.⁵ 5.For examples of how local courts have piloted programs meant to improve justice for individuals, communities, and businesses, see generally infra Section I.A.Show More

But this innovation, when it exists, is matched—at times overmatched—by the injustice that takes place there. Chronic underfunding and a lack of oversight cause problems that run deep. Some local courts are full of violations of federal law, including overlong waits for trial, a dearth of interpreters, ineffective and non-existent public defense programs, inaccessible facilities, and fines and debtor’s prisons that have devastating impacts on indigent defendants. These problems are not only deep; they are vast: most states have some identified problem with their local courts.⁶ 6.See infra Section I.B.Show More

Despite these massive stakes, despite the place of local courts at the heart of the justice system, and despite even the compelling human stories that unfold in these courts, we know very little about them.⁷ 7.See Annie Decker, A Theory of Local Common Law, 35 Cardozo L. Rev. 1939, 1943–44 (2014) (noting a lack of empirical studies about local courts); Ethan J. Leib, Localist Statutory Interpretation, 161 U. Pa. L. Rev. 897, 898–99 (2013) (“[L]egal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts.”); Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 129 (2014) (“[A]s we drown in data about everything else under the sun, we know remarkably little about how [local] courts actually work.”).Show More Their opinions are often unpublished and their proceedings are rarely transcribed.⁸ 8.See infra Subsection II.A.2.Show More They are completely absent from the core law school curriculum.⁹ 9.Others have offered explanations for this erasure. Annie Decker has speculated that the number and diversity of local courts overwhelm us with “anticipatory fatigue.” See Decker, supra note 7, at 1943. Ethan Leib has suggested that we ignore local courts because their opinions are unpublished and inaccessible. See Leib, supra note 7, at 907–08 (“Admittedly, it is not easy to ascertain what is occurring in these local courtrooms with a high level of confidence. Because local courts are much less likely to publish their decisions than state courts higher in the judicial hierarchy, a scholar would need to sit in local courtrooms for long periods of time and read reams of motion papers to discover with any degree of reliability what goes on in these halls of justice.”). As I describe later, these explanations are likely correct, but incomplete.Though local courts are largely absent from doctrinal classes, they are not absent from clinical work, which often takes place within local courts.Show More

This Article begins to remedy that absence by providing a structural account of local courts that situates them as distinct institutions within the justice system. It links the problems experienced by these courts with the state and federal laws that influence local-court function and administration. On the state side, the Article provides new accounts of the administrative and substantive relationships between local courts and state government. It describes how states create and shape the basic contours of local courts through policies that determine how local courts are funded and how local judges are selected.¹⁰ 10.See infra Subsection II.A.1.Show More It uses hand-coded, raw survey data from the National Center for State Courts (NCSC) to illustrate the kinds of formal and informal interactions that exist between local courts and state judicial administrative offices. Although states differ, legal and administrative distance between state and local institutions joined with the rarity of appeals from local-court judgments and the scarcity of other quality control mechanisms makes local courts meaningfully independent from their state systems.¹¹ 11.See infra Subsection II.A.2.Show More

Federal law compounds this independence by sheltering local courts from external scrutiny. Judicial federalism doctrines—specifically preclusion, abstention, and habeas corpus—require federal courts to defer to the legal and factual findings of state courts. In practice, these doctrines require deference to local courts.¹² 12.See infra Subsection II.B.1.Show More As a consequence, federal courts provide surprisingly little oversight of the workings of local courts. And federal enforcement doctrines like standing and immunity protect local courts from legal reform efforts.¹³ 13.See infra Subsection II.B.2.Show More

This structural analysis provides insights not only into local-court functioning but into scholarship on federalism, judicial federalism, and our justice system broadly. Theories of judicial federalism that promote state courts as useful administrators of federal law, invoked by both courts and scholars that draw from the general values of federalism, rely on the myth that state courts are monolithic institutions. In fact, the reality of state courts—including their diversity, relative obscurity, and independence from state institutions—frustrates these values and counsels against deference to local-court decision making.¹⁴ 14.See infra Section III.A.Show More

In addition, theories of judicial federalism miss what I believe is the principal conceptual function of local courts: providing us with an understanding of the justice we have, not the justice we aspire to or the justice required by law. If we look closely enough, we can see that where local courts fail, they fail in part because we allow them to fail. We underfund local courts; we tolerate state systems that do not supervise them; and we have declined to create a federal bureaucracy to monitor them. Local courts—and not federal courts—are the starting point from which we should define and evaluate our system of justice.¹⁵ 15.See infra Section III.B.Show More

This analysis requires some methodological novelty. To build a structural argument, the Article weaves together state and local laws, state judicial administration, federal courts doctrines, and federal enforcement laws. What might appear to be a motley collection of legal authorities actually underscores one reason why studying local courts has been such a challenge: no single discipline offers an analytic framework sufficient to capture the reality of local courts. Four areas deeply informed by these courts—federal courts, civil procedure, state government, and local government—all ignore them. The field of federal courts, for one, addresses jurisdictional questions that directly affect the reach of local courts. And yet to the extent federal courts scholarship acknowledges local courts at all, it describes them in generalities and fails to engage with, or even inquire into, their structural and experiential realities.¹⁶ 16.By their own admission, federal courts scholars have treated local courts as “the neglected stepchild of the field.” Michael E. Solimine & James L. Walker, Respecting State Courts: The Inevitability of Judicial Federalism 141 (1999). As an example, consider the question of “parity,” a foundational concept in federal courts which refers to the relative competence of state and federal courts to adjudicate federal claims. Though parity directly bears upon the abilities of local courts, parity literature has never considered the diversity of local court ability, the particular challenges that local courts face, or the complex relationships these courts have with the rest of the state system. See, e.g., Bator, supra note 4, at 622–23 (calling state and federal courts “partners” in the endeavor to enforce federal constitutional principles and elaborating on federal-court competence); Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1105–06 (1977) (arguing that a belief in parity is “at best, a dangerous myth” and that jurisdictional decisions are not outcome-neutral).Show More Civil procedure scholarship focuses “primarily, if not exclusively, on federal litigation and the Federal Rules of Civil Procedure.”¹⁷ 17.See Barbara A. Babcock, Toni M. Massaro & Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, in A Critical Guide to Civil Procedure (Brooke Coleman et al. eds., forthcoming 2020) (manuscript at 2) (on file with author); see also id. at 1–2 (“[T]he study of how due process works outside the federal courts in the spaces where the vast majority of ordinary people encounter the administration of justice generally does not resurface. . . . This is most unfortunate. . . . Students are increasingly taught ideal procedural justice . . . . Meanwhile, what most Americans experience is nothing like what the models of either administrative or judicial process describe, nothing like what we debate in studying procedure in the federal courts, whatever its defects.”).Show More Scholarship on state law, including my own, has ignored local courts in favor of the state legislative and executive branches.¹⁸ 18.See Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077 (2014) (situating state identity and partisanship within the larger system of federalism); Miriam Seifter, Further from the People? The Puzzle of State Administration, 93 N.Y.U. L. Rev. 107 (2018) (exploring the lack of transparency in state bureaucracy and its consequences); Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483, 484 (2017) (providing a history and functional analysis of gubernatorial power); Justin Weinstein-Tull, State Bureaucratic Undermining, 85 U. Chi. L. Rev. 1083 (2018) (describing the ways in which conflict between and among the state legislative and executive branches can undermine federal rights).Scholarship on state courts and the benefits of state-court constitutionalism—“new judicial federalism” scholarship—has also ignored local courts. See, e.g., Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 94–98 (2000) (arguing for state supreme courts to embrace a new role in constitutional interpretation without mentioning local courts).Show More Even local government literature, the usual stomping grounds for vital but non-national issues otherwise overlooked by the academy, has ignored local courts.¹⁹ 19.Local government scholarship has “for too long failed to see local judges as the complex players they are in municipal governments.” Ethan J. Leib, Local Judges and Local Government, 18 N.Y.U. J. Legis. & Pub. Pol’y 707, 739 (2015); see also id. at 737 (“[L]ocal government scholars who spend time thinking about optimizing the relationships among different levels of government—federal, state, local—have much more work to do to situate local courts within this matrix.”).Instead, local government theory has largely focused on the balance of policymaking authority between state and local governments, see, e.g., David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255 (2003); Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1 (1990); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057 (1980), the liminal legal space occupied by local governments, see, e.g., Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994); Richard C. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371 (2001); Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 Wis. L. Rev. 83, land use, urban planning, and governance problems unique to local government, see, e.g., Michelle Wilde Anderson, The New Minimal Cities, 123 Yale L.J. 1118 (2014); Nestor M. Davidson, Localist Administrative Law, 126 Yale L.J. 564 (2017); David Schleicher, City Unplanning, 122 Yale L.J. 1670 (2013), and federal-state-local relationships in various policy areas, see, e.g., Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures’ Control, 97 Mich. L. Rev. 1201 (1999); Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567 (2008); Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747 (2016). This is not, of course, an exhaustive list of categories.Show More

The legal academy’s failure to account for local courts—with two narrow exceptions²⁰ 20.The first exception is misdemeanor criminal process. Scholars have unearthed fascinating (and horrifying) details of how criminal procedure works in the context of minor offenses tried in local courts. See, e.g., Malcolm M. Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court (1992); Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2018) (describing the “procedural hassle” of criminal procedure in New York local courts); Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (2018); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1315 (2012) [hereinafter Natapoff, Misdemeanors] (“Most U.S. convictions are misdemeanors, and they are generated in ways that baldly contradict the standard due process model of criminal adjudication.”). And a deep literature exists that probes the rise of pleas and the process surrounding them. See, e.g., Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117 (2008); George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J. 857 (2000); Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855 (2019); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992).The second exception is the response to Michael Brown’s killing in Ferguson, Missouri. After Brown’s death, the U.S. Department of Justice issued a report that detailed the failures of the Ferguson municipal court, including that the court handled criminal charges “not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue.” See U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 42 (2015) [hereinafter DOJ Ferguson Report] https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/fergu­son_police_department_report.pdf [https://perma.cc/26R9-AB4B]. Scholars have since done illuminating work on local-court reform using Ferguson as a case study. See, e.g., Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171 (2017) (describing the many constitutional rights violated by Ferguson’s local-court system and the impact of individual defense counsel on reform efforts); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018) (arguing that the Younger abstention doctrine precludes meaningful oversight of local courts and governments).Show More—has essentially divorced legal theory from the most fundamental and common experiences of our justice system. As a consequence, the study of local courts is unexpectedly nascent.²¹ 21.Although there is essentially no academic legal scholarship on local courts as courts, illuminating scholarship does exist on specific issues that take place in local courts, including problems relating to problem-solving and subject-matter courts. See, e.g., Richard C. Boldt, Problem-Solving Courts and Pragmatism, 73 Md. L. Rev. 1120 (2014) (considering how pragmatism informs the judicial process in problem-solving courts); Erin R. Collins, Status Courts, 105 Geo. L.J. 1481 (2017) (describing the promise and pitfalls of local courts that are tailored to certain types of defendants); D. James Greiner, Cassandra Wolos Pattanayak & Jonathan Hennessy, The Limits of Unbundled Legal Assistance: A Randomized Study in A Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013) (empirically evaluating different kinds of legal services in Massachusetts district courts).But in the same way that we don’t consider the study of federal criminal law to satisfy our need to understand federal courts more broadly, neither does the study of specific legal issues that arise in local courts satisfy our need to understand local courts.Show More That status is perverse. Why should most litigants’ primary experiences with the legal system be academic afterthoughts?

Part I of this Article explains the high stakes—both practical and conceptual—associated with local courts. Part II links these problems with the structures of local courts by arguing that the state and federal systems do not provide significant oversight of these courts. Section II.A provides new accounts of the administrative and substantive relationships between local courts and their states. Section II.B describes how federal law shelters local courts from external scrutiny. Whereas Part II examines the effects of the state and federal systems on the internal workings of local courts, Part III does the opposite: it looks outward and reevaluates our thinking on judicial federalism in light of the diversity and problems of local courts.

I conclude by arguing that local courts should not be relegated to the status of quirky hybrid within the academy. I speculate about what a field of local courts would look like and suggest that treating local courts as a fundamental building block within the law would both solve a number of problems and create a promising set of questions for further study.

1. * Associate Professor of Law, Arizona State University. I owe many thanks. First, to my fantastic research assistants: Samantha Burke, Lucas Hickman, Kelsey Merrick, Austin Marshall, and Jack Milligan. Second, to the judges and court administrators who told me stories and offered their ideas. Third, to the many readers whose generosity, thoughts, and suggestions I have not done justice: Michelle Anderson, Abbye Atkinson, Richard Briffault, Beth Colgan, Laura Coordes, Nestor Davidson, George Fisher, Deborah Hensler, Ethan Leib, Ron Levin, Kaipo Matsumura, Ben McJunkin, Jeannie Merino, Martha Minow, Michael Pollack, Dara Purvis, Trevor Reed, Michael Saks, Erin Scharff, Rich Schragger, Joshua Sellers, Michael Selmi, Bijal Shah, Jonathan Siegel, Shirin Sinnar, Fred Smith, Ji Seon Song, Norm Spaulding, David Super, Andrea Wang, participants of the Stanford/Harvard/Yale Junior Faculty Forum, Junior Faculty Federal Courts Workshop, the State and Local Government Law Works-in-Progress Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Grey Fellows Forum, and faculty workshops at Arizona State University and U.C. Irvine. And finally, to Jordan Walsh and the editors of the Virginia Law Review for their thorough and tireless work. ↑
2. Courthouse architecture is a fascinating topic in its own right. See Judith Resnik & Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (2011); Norman W. Spaulding, The Enclosure of Justice: Courthouse Architecture, Due Process, and the Dead Metaphor of Trial, 24 Yale J.L. & Human. 311, 315 (2012) (“[T]he American concept of due process of law is itself intimately bound up with the location, design, and use of law’s administrative space.”). For recent images of local courts around the country, see American Courthouses: A Photo Archive by John Deacon, http://www.courthouses.co/ (last visited Apr. 12, 2020) [https://perma.cc/K2MQ-UYMN].Deteriorating physical conditions of local courthouses are not unique to Wilkinson County and go beyond “complaints about the color of the carpeting.” ISBA Special Comm. on Fair & Impartial Courts, Ill. State Bar Ass’n, Report on the Funding Crisis in the Illinois
   Courts 20 (2013) [hereinafter ISBA Report], https://www.isba.org/sites/default/files/­committees/Report%20on%20the%20Funding%20Crisis%20in%20the%20Illinois%20Courts.pdf [https://perma.cc/B54U-CMAP]. An Illinois State Bar Association report, for example, describes local courthouses with “mold visibly growing on the ceilings” and courthouses with heating and air conditioning systems so ineffective that “some rooms . . . are almost as warm as a sauna and other rooms . . . are ridiculously cold all on the same day.” Id. at 20 & 20 n.45. For more examples, see generally infra Section I.B. ↑
3. The diversity of local courts makes defining the category an important part of the analysis. For a more detailed explanation, see infra Part I. ↑
4. See infra Part I. ↑
5. See Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 634 (1981) (“Do we not derive enormous benefits from having a variety of institutional ‘sets’ within which issues of federal constitutional law are addressed? The creative ferment of experimentation which federalism encourages is not irrelevant to the task of constitutional adjudication.”). ↑
6. For examples of how local courts have piloted programs meant to improve justice for individuals, communities, and businesses, see generally infra Section I.A. ↑
7. See infra Section I.B. ↑
8. See Annie Decker, A Theory of Local Common Law, 35 Cardozo L. Rev. 1939, 1943–44 (2014) (noting a lack of empirical studies about local courts); Ethan J. Leib, Localist Statutory Interpretation, 161 U. Pa. L. Rev. 897, 898–99 (2013) (“[L]egal scholars have almost universally ignored the law in local courts, favoring the study of federal courts and state appellate courts.”); Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 129 (2014) (“[A]s we drown in data about everything else under the sun, we know remarkably little about how [local] courts actually work.”). ↑
9. See infra Subsection II.A.2. ↑
10. Others have offered explanations for this erasure. Annie Decker has speculated that the number and diversity of local courts overwhelm us with “anticipatory fatigue.” See Decker, supra note 7, at 1943. Ethan Leib has suggested that we ignore local courts because their opinions are unpublished and inaccessible. See Leib, supra note 7, at 907–08 (“Admittedly, it is not easy to ascertain what is occurring in these local courtrooms with a high level of confidence. Because local courts are much less likely to publish their decisions than state courts higher in the judicial hierarchy, a scholar would need to sit in local courtrooms for long periods of time and read reams of motion papers to discover with any degree of reliability what goes on in these halls of justice.”). As I describe later, these explanations are likely correct, but incomplete.Though local courts are largely absent from doctrinal classes, they are not absent from clinical work, which often takes place within local courts. ↑
11. See infra Subsection II.A.1. ↑
12. See infra Subsection II.A.2. ↑
13. See infra Subsection II.B.1. ↑
14. See infra Subsection II.B.2. ↑
15. See infra Section III.A. ↑
16. See infra Section III.B. ↑
17. By their own admission, federal courts scholars have treated local courts as “the neglected stepchild of the field.” Michael E. Solimine & James L. Walker, Respecting State Courts: The Inevitability of Judicial Federalism 141 (1999). As an example, consider the question of “parity,” a foundational concept in federal courts which refers to the relative competence of state and federal courts to adjudicate federal claims. Though parity directly bears upon the abilities of local courts, parity literature has never considered the diversity of local court ability, the particular challenges that local courts face, or the complex relationships these courts have with the rest of the state system. See, e.g., Bator, supra note 4, at 622–23 (calling state and federal courts “partners” in the endeavor to enforce federal constitutional principles and elaborating on federal-court competence); Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1105–06 (1977) (arguing that a belief in parity is “at best, a dangerous myth” and that jurisdictional decisions are not outcome-neutral). ↑
18. See Barbara A. Babcock, Toni M. Massaro & Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, in A Critical Guide to Civil Procedure (Brooke Coleman et al. eds., forthcoming 2020) (manuscript at 2) (on file with author); see also id. at 1–2 (“[T]he study of how due process works outside the federal courts in the spaces where the vast majority of ordinary people encounter the administration of justice generally does not resurface. . . . This is most unfortunate. . . . Students are increasingly taught ideal procedural justice . . . . Meanwhile, what most Americans experience is nothing like what the models of either administrative or judicial process describe, nothing like what we debate in studying procedure in the federal courts, whatever its defects.”). ↑
19. See Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077 (2014) (situating state identity and partisanship within the larger system of federalism); Miriam Seifter, Further from the People? The Puzzle of State Administration, 93 N.Y.U. L. Rev. 107 (2018) (exploring the lack of transparency in state bureaucracy and its consequences); Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483, 484 (2017) (providing a history and functional analysis of gubernatorial power); Justin Weinstein-Tull, State Bureaucratic Undermining, 85 U. Chi. L. Rev. 1083 (2018) (describing the ways in which conflict between and among the state legislative and executive branches can undermine federal rights).Scholarship on state courts and the benefits of state-court constitutionalism—“new judicial federalism” scholarship—has also ignored local courts. See, e.g., Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 94–98 (2000) (arguing for state supreme courts to embrace a new role in constitutional interpretation without mentioning local courts). ↑
20. Local government scholarship has “for too long failed to see local judges as the complex players they are in municipal governments.” Ethan J. Leib, Local Judges and Local Government, 18 N.Y.U. J. Legis. & Pub. Pol’y 707, 739 (2015); see also id. at 737 (“[L]ocal government scholars who spend time thinking about optimizing the relationships among different levels of government—federal, state, local—have much more work to do to situate local courts within this matrix.”).Instead, local government theory has largely focused on the balance of policymaking authority between state and local governments, see, e.g., David J. Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255 (2003); Richard Briffault, Our Localism: Part I—The Structure of Local Government Law, 90 Colum. L. Rev. 1 (1990); Gerald E. Frug, The City as a Legal Concept, 93 Harv. L. Rev. 1057 (1980), the liminal legal space occupied by local governments, see, e.g., Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 Harv. L. Rev. 1841 (1994); Richard C. Schragger, The Limits of Localism, 100 Mich. L. Rev. 371 (2001); Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 Wis. L. Rev. 83, land use, urban planning, and governance problems unique to local government, see, e.g., Michelle Wilde Anderson, The New Minimal Cities, 123 Yale L.J. 1118 (2014); Nestor M. Davidson, Localist Administrative Law, 126 Yale L.J. 564 (2017); David Schleicher, City Unplanning, 122 Yale L.J. 1670 (2013), and federal-state-local relationships in various policy areas, see, e.g., Roderick M. Hills, Jr., Dissecting the State: The Use of Federal Law to Free State and Local Officials from State Legislatures’ Control, 97 Mich. L. Rev. 1201 (1999); Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567 (2008); Justin Weinstein-Tull, Election Law Federalism, 114 Mich. L. Rev. 747 (2016). This is not, of course, an exhaustive list of categories. ↑
21. The first exception is misdemeanor criminal process. Scholars have unearthed fascinating (and horrifying) details of how criminal procedure works in the context of minor offenses tried in local courts. See, e.g., Malcolm M. Feeley, The Process is the Punishment: Handling Cases in a Lower Criminal Court (1992); Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2018) (describing the “procedural hassle” of criminal procedure in New York local courts); Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (2018); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1315 (2012) [hereinafter Natapoff, Misdemeanors] (“Most U.S. convictions are misdemeanors, and they are generated in ways that baldly contradict the standard due process model of criminal adjudication.”). And a deep literature exists that probes the rise of pleas and the process surrounding them. See, e.g., Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117 (2008); George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J. 857 (2000); Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855 (2019); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992).The second exception is the response to Michael Brown’s killing in Ferguson, Missouri. After Brown’s death, the U.S. Department of Justice issued a report that detailed the failures of the Ferguson municipal court, including that the court handled criminal charges “not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue.” See U.S. Dep’t of Justice, Civil Rights Div., Investigation of
    the Ferguson Police Department 42 (2015) [hereinafter DOJ Ferguson Report] https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/fergu­son_police_department_report.pdf [https://perma.cc/26R9-AB4B]. Scholars have since done illuminating work on local-court reform using Ferguson as a case study. See, e.g., Beth A. Colgan, Lessons from Ferguson on Individual Defense Representation as a Tool of Systemic Reform, 58 Wm. & Mary L. Rev. 1171 (2017) (describing the many constitutional rights violated by Ferguson’s local-court system and the impact of individual defense counsel on reform efforts); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018) (arguing that the Younger abstention doctrine precludes meaningful oversight of local courts and governments). ↑
22. Although there is essentially no academic legal scholarship on local courts as courts, illuminating scholarship does exist on specific issues that take place in local courts, including problems relating to problem-solving and subject-matter courts. See, e.g., Richard C. Boldt, Problem-Solving Courts and Pragmatism, 73 Md. L. Rev. 1120 (2014) (considering how pragmatism informs the judicial process in problem-solving courts); Erin R. Collins, Status Courts, 105 Geo. L.J. 1481 (2017) (describing the promise and pitfalls of local courts that are tailored to certain types of defendants); D. James Greiner, Cassandra Wolos Pattanayak & Jonathan Hennessy, The Limits of Unbundled Legal Assistance: A Randomized Study in A Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013) (empirically evaluating different kinds of legal services in Massachusetts district courts).But in the same way that we don’t consider the study of federal criminal law to satisfy our need to understand federal courts more broadly, neither does the study of specific legal issues that arise in local courts satisfy our need to understand local courts. ↑

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This Article is the first to identify how rare meaningful use of dynamic incorporation is in criminal law and also how this scarcity affects that law. With some notable exceptions, Congress ordinarily acts alone in criminal law. But using dynamic incorporation more often would redress two problems: the political inertia that makes reforming criminal laws exceptionally difficult and the limited accountability officials face for their enforcement decisions.

Marijuana laws provide a compelling example. Federal law flatly prohibits all marijuana use. But forty-six states now have laws that conflict with federal law, and ninety-three percent of Americans believe that medicinal marijuana should be lawful. The only legislation Congress has managed to pass in response to this conflict makes heavy use of dynamic incorporation. This example and others suggest that dynamic incorporation reduces congressional inertia in criminal law. What’s more, dynamic incorporation creates additional flexibility that prevents these kinds of conflicts from arising in the first place.

Dynamic incorporation also furthers separation-of-powers values. Local and federal enforcement officials have created a relationship that makes local officials a critical part of federal enforcement. This relationship is efficient, but it also enables local officials to evade state law constraints. Local officials can use this ability to, for example, worsen sentencing disparity. Dynamic incorporation rebalances power by giving state legislatures the opportunity to exercise greater oversight of enforcement discretion, enhancing enforcement accountability.

Federalism scholars have overlooked the most potent consequences of dynamic incorporation. Traditional federalism focused on identifying and defining the separate spheres of federal or state influence. And national federalism has focused on how states empower the federal government or shape policy by helping administer federal policies or programs. But this scholarship has missed the important consequences that occur when Congress enables states not only to administer federal programs or policies, but partly to define the existence and scope of those programs or policies—consequences that have particular potency in criminal law.

Introduction

In the aftermath of an enormous expansion in federal reach, a system of dual federal and state regulation now governs most major issues. But in many areas, Congress has not preempted state law. It instead has engaged in a form of federalism—statutory federalism—that enables state law to influence how and when federal law applies. The tax code and the Social Security Act, for example, provide federal benefits for married persons, but state law primarily determines who is married.¹ 1.E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts).Show More Federal law protects against deprivations of property, but states largely define what “property” is.² 2.Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property).Show More Even bankruptcy law, which constitutionally must be “uniform,”³ 3.U.S. Const. art. I, § 8.Show More has enormous regional variance because state law determines whether a debt exists.⁴ 4.Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008).Show More

In these and other areas, federal law depends on application of state law and thus “incorporates” state law. And this incorporation often is “dynamic”: federal law automatically changes as the incorporated state laws are amended. The Constitution, for example, protects against depriving persons of forms of property that are modern, not only those forms that existed when the relevant constitutional provisions were ratified.

Dynamic incorporation eases the tension that would otherwise arise when different governments issue regulations that overlap. Its critical importance becomes apparent from those instances where it is not used. Marijuana law provides a striking example. State and federal marijuana laws are in stark conflict precisely because Congress has not created interdependence between those laws. As states have passed competing laws, those laws—unlike statutes using dynamic incorporation—have had no effect on when or how federal law applies.

The scholarship has overlooked the importance of dynamic incorporation, both in federalism and in criminal law. Federalism scholarship has not yet understood the relationship created when Congress enables state legislatures to determine how and when federal law will apply. Indeed, as Professor Abbe Gluck points out, the incentives for dynamic incorporation have remained “almost entirely unrecognized.”⁵ 5.Abbe R. Gluck, Our [National] Federalism,123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism].Show More Criminal law scholarship is similar. One scholar has discussed some drawbacks to federal reliance on state law.⁶ 6.Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006).Show More But criminal law scholarship has not yet recognized that meaningful use of dynamic incorporation is rare in federal criminal law—at least, it is rare in those statutes that are routinely enforced.⁷ 7.Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation.Show More

This Article fills these gaps. It explains how dynamic incorporation expands upon the framework of “national federalism” often discussed by Professors Heather Gerken and Abbe Gluck—that is, statutory instead of constitutional federalism. It explains the consequential importance of dynamic incorporation and the incentives for using it. And then, focusing on criminal law, this Article establishes that Congress’s decision to enact criminal laws that overlap substantially with state law but not to create substantive interdependence between those regimes generates two serious problems. Greater use of dynamic incorporation would reform criminal law in two ways.

First, it would reduce the unique inertia that impedes reforming criminal law. In criminal law, political incentives ordinarily favor a one-way ratchet toward more criminal laws, making it more difficult than normal to reform or update older legislation.⁸ 8.See notes infra 125­–133 and accompanying text.Show More Dynamic incorporation curbs this inertia by giving each of the fifty states an opportunity to update federal law. What’s more, bills that use dynamic incorporation generally face less political opposition because their allowance for greater regional variability means they are less likely to inconvenience key stakeholders. This fact means that these bills are more likely to become enacted. Both these measures give Congress greater flexibility. And applied to criminal law, these measures help ease the inertia that makes reforming criminal laws exceptionally difficult.

Again, the conflict over marijuana laws illustrates this concept well. Federal law prohibits all uses of marijuana, but the vast majority of Americans support at least medicinal use, so most states have passed laws that permit what federal law unequivocally prohibits. This author, like most major medical associations, remains skeptical of medicinal use because marijuana has not undergone the kind of scientific studies required for other medicinal products.⁹ 9.See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise).Show More But regardless of the scientific debate, the conflict between state and federal law harms the rule of law and creates many collateral consequences.

Dynamic incorporation could have—and still can—mediate this conflict. The most robust form of dynamic incorporation is a federal statute that lets states create safe harbors against federal liability: if a person complies with state law, then they are not subject to federal enforcement. A federal law with this kind of provision would allow states to drag federal marijuana law slowly into conformity with public opinion, state by state. In fact, Congress has passed only one legislative response to this conflict, and it did so by enacting this kind of provision—albeit using a budget rider that is both temporary and narrow.¹⁰ 10.Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016).Show More

Second, dynamic incorporation can strengthen separation of powers by providing state legislatures with greater opportunities to exercise oversight for enforcement discretion. Few realize that local police heavily influence federal prosecutions and thus can evade state law. Local police often are the information gatekeepers both for local and federal prosecutors. So local police often can avoid more defendant-friendly state sentencing laws, substantive laws, or procedures simply by shifting defendants to federal court. This forum shopping might be beneficial in some contexts. But the problem is that it is exercised with little or no external accountability.

Dynamic incorporation provides new opportunities to reinforce separation of powers by checking that discretion. By creating an interdependence between federal and state legislatures, dynamic incorporation opens the opportunity for fifty more legislatures to oversee how federal law is enforced. Because those legislatures shape federal law, they can narrow the circumstances in which local officials are able to evade the constraints of state law. More generally, the joint partnership between federal prosecutors and local police enhances the power of executive officials compared to legislatures, but dynamic incorporation restores some of that power to legislatures.

This Article proceeds in four parts. Part I explains why dynamic incorporation is one of the most potent tools of modern federalism. This Part describes the concept of dynamic incorporation and classifies those kinds of statutes into four categories. This Part then explains the scholarship on “national federalism,” which studies how the modern Congress entrusts states to implement federal programs, and explains that federalism scholars have not yet appreciated that dynamic incorporation is a potent tool Congress can use to enable state legislatures to help Congress obtain national ends. This Part then explains what the limited scholarship on dynamic incorporation in criminal law misses.

Part II reveals how dynamic incorporation can mitigate the problem of inertia in criminal law. Using the conflicting state and federal laws on marijuana as an illustration, this Part explains how dynamic incorporation can remove the political barriers unique to criminal law that make it harder to reform or update anachronistic criminal statutes. And it explains why dynamic incorporation prevents conflicts like the conflict over marijuana law from occurring in the first place.

Part III then explains that dynamic incorporation reinforces separation of powers by providing greater accountability over enforcement discretion. This Part first exposes the relatively invisible contributor to unchecked enforcement discretion. When Congress greatly expanded the scope of federal criminal law, it did not proportionately increase the federal police force. Local enforcement officials fill that gap, serving as information gatekeepers for federal prosecutors. That new role enhances the power of both local and federal enforcement officials—at the expense of other officials. Dynamic incorporation checks this discretion because it multiplies the number of institutions that can oversee the power of executive officials and rebalances the power to shift some influence away from enforcement officials to legislatures.

Part IV responds to objections. It explains why problems applying the Armed Career Criminal Act do not weigh against dynamic incorp­oration. Although that statute uses dynamic incorporation, the provisions that lead to extensive litigation are precisely those provisions that do not use dynamic incorporation. More dynamic incorporation in fact would resolve the difficulties with that statute. This Part also explains that the relative scarcity of dynamic incorporation in federal criminal law is not due to any determination by Congress that dynamic incorporation would not serve its purposes. Finally, this Part explains that dynamic incorporation does not amount to unlawful delegation, and that possible concerns about decreasing uniformity do not counsel against using dynamic incorporation.

1. * Yale Law School, J.D. 2016. All views are my own. I am grateful to Professors Heather Gerken, Abbe Gluck, Derek Muller, Michael Dorf, and Wayne Logan, and also to Krista Perry, Madeline Lansky, James Durling, John Ehrett, and Andrew Nussbaum for their insightful comments about this project. ↑
2. E.g., 42 U.S.C. § 416(b), (f), (h) (2012) (defining “wife,” “husband,” and “married” by referencing state law as construed by state courts). ↑
3. Akhil Reed Amar, Foreword: Lord Camden Meets Federalism—Using State Constitutions to Counter Federal Abuses, 27 Rutgers L.J. 845, 854–55 (1996) (“Property is often—though admittedly not always—a state law concept, and one that changes over time. Thus, the compensation clause will indeed vary from state to state and year to year as the state-law tinged concept of property itself varies.”); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1944–45 (2017) (narrowly ruling that some undefined limits constrain the ability of states to redefine property). ↑
4. U.S. Const. art. I, § 8. ↑
5. Michael C. Dorf, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103, 144 (2008). ↑
6. Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 2008 & n.45 (2014) [hereinafter Gluck, Our [National] Federalism]. ↑
7. Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. Rev. 65, 74, 84–101 (2006). ↑
8. Some exceptions exist. Federal law considers state law for sentencing, but interdependence between the state and federal statutes that create substantive criminal liability rarely occurs for the statutes that are enforced. The one notable exception to this rule is the statute that bars people who have committed state felonies from possessing firearms. 18 U.S.C. § 922(g) (2018). But as this Article shows, even that exception employs only a weak, ineffective form of dynamic incorporation. ↑
9. See notes infra 125­–133 and accompanying text. ↑
10. See, e.g., Smart Approaches to Marijuana, https://learnaboutsam.org/the-issues/public-health-organizations-positions-on-medical-marijuana/ [https://perma.cc/VD97-3YR2] (com­piling the positions of national medical associations, such as the American Medical Asso­ciation); Alex Smith, As Missouri Voters Weigh Legalizing Medical Marijuana, Doctors Urge a Look at Its Health Risks, Nat’l Pub. Radio (Nov. 1, 2018), http://www.kbia.org/post/miss­ouri-voters-weigh-legalizing-medical-marijuana-doctors-urge-look-its-health-risks [https://­perma.cc/CZ3S-ZE2X] (explaining that many medical associations oppose modern medical marijuana initiatives because of a lack of evidence that marijuana operates in the way activists promise). ↑
11. Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, § 538, 132 Stat. 348, 444–45; United States v. McIntosh, 833 F.3d 1163, 1169 (9th Cir. 2016). ↑

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