Online Feature

The Private Life of Public Rights: State Constitutions and the Common Law

Helen Hershkoff

In this lecture, I make the positive point that some state courts do indeed indirectly enforce state constitutional norms through the common law when resolving disputes that involve only private actors, and that this practice is analytically distinct from mere policymaking. The practice allows public law to influence the content of private law in ways that may not immediately be obvious to see. I illustrate the practice, and I point to some of the common law pathways that state courts use in this process. I then make the normative argument, and try to convince you, that more state courts should embrace this practice. I close by suggesting some of the implications this practice holds for social improvement. Thinking back to my earlier career as a public interest lawyer, I was motivated by the belief that law, and especially constitutional law, can improve everyday life. I still hold that view, but I have come to see that the mechanisms of change also must include the slow, molecular motions of the common law.