Lee J. Strang (University of Toledo College of Law) has posted State Court Judges Are Not Bound by Nonoriginalist Supreme Court Interpretations (FIU Law Review, Vol 11, p.327, 2016) on SSRN. Here is the abstract:
In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.
An interesting paper — I saw Professor Strang present it at the FIU conference. Here is the video. I am not sure, on his premises, why state court judges should be bound by incorrect originalist Supreme Court interpretations either (though I see the problem with taking it that far).
Posted at 6:42 AM