Linde’s Legacy: The Triumph of Oregon State Constitutional Law, 1970-2000. (original) (raw)

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.