Richard Price | Weber State University (original) (raw)

Papers by Richard Price

Beginning in the 1970s, scholars and judges became interested in state constitutional law, arguin... more Beginning in the 1970s, scholars and judges became interested in state constitutional law, arguing that state constitutions had been too long ignored especially in cases involving rights arguments. Empirical studies discovered, however, that actual application of state constitutional law in rights cases was uneven and limited over time, across issue areas, and between courts. This article seeks to deepen our understanding of variations in state constitutional application by exploring how and when litigants in state courts offer state constitutional rights arguments. I argue that it is important to examine the signals sent by state courts and how lawyers respond to those signals. Under the leadership of Justice Hans Linde, the Oregon Supreme Court embraced a powerful expectation that all issues of state law should be settled prior to any federal issue. Litigants responded to this signal by offering state arguments more often and in greater depth than litigants in other states. Linde’s legacy normalized state constitutional law, making it part of the everyday fabric of constitutional litigation in Oregon.

The willingness of constitutional courts to extend free expression protection to speech that crit... more The willingness of constitutional courts to extend free expression protection to speech that criticizes the performance and/or character of courts and judges could be a more widely used benchmark for assessing the commitment of various democratic jurisdictions to free expression. In a democracy, political institutions (and the leaders who occupy them) must tolerate criticism of their decisions (and their competence and character); this rule applies to courts no less than to legislatures and executives. Indeed, this rule is a key indicator of courts’ democracy-reinforcing character. In this paper, we trace the emergence of this commitment in English and American contempt-of-court case law and then assess whether and to what degree constitutional courts in other jurisdictions have followed a similar path. We close with a systematic analysis of all judgments issued by the European Court of Human Rights (ECtHR) on the merits of Article 10 free expression claims involving anti-judicial speech acts. We conclude that the ECtHR, like most constitutional courts in the world, has yet to articulate a standard that adequately distinguishes between legitimate commentary on judicial performance and illegitimate threats to judicial independence and the rule of law.

The progress of judicial federalism, the independent interpretation of state constitutions, has g... more The progress of judicial federalism, the independent interpretation of state constitutions, has generally been limited. This article explores how lawyers have contributed to the development of state constitutional rights law in the search and seizure context. Through a comparative study of lawyers in New York, Ohio, Oregon, and Washington, I argue that the ideational support provided by lawyers in the form of constitutional arguments has varied widely across the states in response to the legal signals sent by their high courts and the United States Supreme Court. In essence, the argument is that lawyers need law and in the area of judicial federalism have largely waited for their state courts to provide some measure of leadership.

The use of courts to achieve social change has long been criticized on the grounds that judicial ... more The use of courts to achieve social change has long been criticized on the grounds that judicial victories tend to provoke counterproductive political backlashes. Backlash arguments typically assert or imply that if movement litigators had relied on democratic rather than judicial politics, their policy victories would have been better insulated from opposition. We argue that these accounts wrongly assume that the unilateral decision by a group of movement advocates to eschew litigation will lead to a reduced role for courts in resolving the relevant policy and political conflicts. To the contrary, such a decision will often result in a policy field with judges every bit as active, but with the legal challenges initiated and framed by the advocates’ opponents. We document this claim and explore its implications for constitutional politics via a counterfactual thought experiment, rooted in historical case studies of litigation involving abortion and the right to die.

Exploring legal development requires more than simply examining the votes of judges because legal... more Exploring legal development requires more than simply examining the votes of judges because legal development embraces the actions of multiple actors. At a minimum, courts require lawyers to develop and present cases to them for adjudication. While courts need lawyers, lawyers need law; in other words, courts rely on lawyers to develop cases for their review, but the law provided by those courts shapes the actions of lawyers. This article examines the development of state constitutional law by exploring the interactions between lawyers and the Washington Supreme Court after the court required specific brief- ing practices for state constitutional arguments and the degree to which Washington lawyers responded. Utilizing legal briefs in Washington and some comparative data, I argue that the court was moderately successful at encouraging more thorough constitutional claims. This highlights the importance of con- sidering how lawyers respond to court signals not only in the presence or absence of certain legal argu- ments but also in the content of those arguments.