Forty years after Justice Brennan’s call for the development of state constitutions (State Constitutions and the Protection of Individual Rights, Jan. 1977, Harvard Law Review), have state courts and practitioners since heeded his call? Audio and video are now available and posted to the event schedule.


9:00 a.m.

Forty Years Later: The Brennan Article and State Constitutions - Audio/Video
9:05 a.m. – 10:20 a.m.                      

In 1977, the publication of Justice William Brennan’s article, “State Constitutions and the Protection of Individual Rights,” provoked many litigators to look to the state courts to enhance individual liberties beyond the scope of the federal constitution. Panelists will discuss the legacy of Justice Brennan’s call for state constitutions to serve as a bulwark for individual liberties. How have state courts responded? Panelists will also discuss if the advancement of federalism has been an unintended consequence of this call to action. They will also discuss what this trend toward greater state judicial engagement means for the separation of powers and legislative action.

  • Dean James A. Gardner, Interim Dean, SUNY Distinguished Professor and Bridget and Thomas Black Professor, University at Buffalo School of Law
  • Prof. Kenneth Miller, Claremont McKenna College
  • Prof. Derek Muller, Pepperdine University School of Law
  • Moderator: Hon. Jay Bybee, U.S. Court of Appeals, 9th Circuit

Litigating State Constitutional Issues - Audio/Video
10:30 a.m. – 12:00 Noon       

The past forty years have seen a surge in efforts to litigate under state constitutional provisions furthering individual liberties. Panelists could look to numerous examples of differences between the state and federal constitutions (examples include criminal justice, property rights, same-sex marriage, education/school choice, labor, speech, and economic liberty) and explore how such differences have affected litigation strategy and forum shopping. Which emerging controversies are ripe to be litigated in state courts as opposed to the federal courts? What about business and arbitration cases? In the light of the results of the 2016 election, might some litigators further turn to the state courts to best protect liberty in light of changes to the federal bench?   

  • Thomas F. Ahearne, Foster Pepper and Counsel to Plaintiffs, McCleary v. State 
  • Paul Avelar, Senior Attorney, Institute for Justice
  • Jeremy Rosen, Partner, Horvitz & Levy LLP and Director, 9th Circuit Appellate Clinic, Pepperdine University School of Law
  • Moderator: Hon. Carolyn Kuhl, Superior Court of California, County of Los Angeles

Luncheon: Conversation with State Supreme Court Justices - Audio/Video
12:00 Noon – 1:45 pm     

What is the proper role of the State judiciary when considering questions of federal law?  If there are independent and adequate federal and State grounds, on which basis should a state supreme court decide a case?

  • Hon. Clint Bolick, Arizona Supreme Court
  • Hon. Stephen Markman, Michigan Supreme Court
  • Moderator: Hon. Diane Sykes, U.S. Court of Appeals, 7th Circuit

Debate—State Blaine Amendments - Audio/Video
2:00 pm - 3:00 pm           

The Supreme Court has agreed to hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case questions whether the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of Free Exercise of Religion and the Fourteenth Amendment’s Equal Protection Clause. Debaters will address this case along with the Blaine Amendment implications.

  • David A. Cortman, Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom
  • Prof. Steven Green, Fred H. Paulus Professor of Law and Director of the Center for Religion, Law & Democracy, Willamette University College of Law
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, 9th Circuit

Tours: Interactive! The Exhibition. 
3:00 pm – 4:00 pm 

Closing Reception: Air Force One Overlook 
4:00 pm – 5:00 pm

Views and opinions expressed by the Federalist Society are not necessarily shared by the Ronald Reagan Presidential Library and Foundation. 

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