Helen Hershkoff and Adam Littlestone-Luria, New York University School of Law, have posted The Louisiana Constitution and the Courts of Westminster: Standing and the Civil Law Heritage, which is forthcoming in the Louisiana Law Review:
A substantial majority of the Roberts Court now purports to rest constitutional jurisprudence on a legal “history and tradition” divined from the nation’s common law heritage. Leaving aside the question whether this approach should carry dispositive weight in interpreting the federal Constitution, this Article raises a different but unacknowledged concern: The Court’s brand of originalism relies on a cramped notion of the nation’s “usable past.” Its myopic focus on our common law heritage erases other critical threads in the relevant legal legacy. In particular, the Article focuses on the civil law heritage of the Louisiana Constitution. As a first step, we interrogate whether the Louisiana court should automatically interpret its state standing requirement in lock step with the federal. We argue that the Supreme Court’s recent move to limit the kinds of legal harms that count as a basis for Article III standing in terms of common law analogues may cause serious distortion if it is mimicked by Louisiana’s courts. Since the civil tradition and civil codes play such an integral role as the source and definition of private rights and interests, a singular focus on common law analogs may warp the proper “history and tradition” that is relevant to Louisiana law. In conclusion, the article steps beyond the Louisiana context, arguing that the analysis carries wider implications. Assuming that history and tradition must, or at least may, play a role in legal analysis, lawmakers and judges in each state should recognize the potential inherent in their own distinctive legal legacies. As a final step, we argue that the Supreme Court’s brand of originalism obscures the deep pluralism that marks the nation’s history and tradition—a multiplicity which standing doctrine should respect and even celebrate.--Dan Ernst
