Thread by @IJSanders

Why aren’t more state constitutional claims brought in federal court? @michaelmorley11 posted a very helpful article on that. I had some additional thoughts here. In short, in addition to procedural bars, there’s practical concerns of $ and prudence. 1/

ij.org/cje-post/why-d…

@michaelmorley11 In reviewing Judge Sutton’s excellent book on state cons, Prof Morley demonstrates how Pullman abstention & sovereign immunity, & a few other procedural reasons, often prevent civil rights plaintiffs from bringing state con claims in federal court. 2/

papers.ssrn.com/sol3/papers.cf…

@michaelmorley11 I wanted to add a couple others practical barriers. One is $$$. You can get attorney’s fees for federal claims & sometimes even damages. You usually can’t get either for state con claims. Sometimes it might even be *worse* to bring state con claims in federal court. 3/

@michaelmorley11 Another is the fact that federal judges aren’t usually thrilled about novel state constitutional claims (Judge Sutton is unfortunately an unusual exception!). Bringing state constitutional claims in federal court is therefore a bit of tempting fate. 4/

@michaelmorley11 So, if you’ve ever wanted to bring a state constitutional claim & are thinking about whether to go to state or federal court, or whether to go the federal or state constitutional route in the 1st place, please read @michaelmorley11’s article & my post! 5/

ij.org/cje-post/why-d…

@michaelmorley11 Finally, I want to emphasize that people SHOULD bring more state con claims! This is reality, not the way it should be (for ex., there could be attorney’s fees for state con claims). But the reality is state constitutional claims are generally going to be in state court. 6/6