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plied to interstate trucking industry, as the regulation varied from the uniform requirements of other states without any evident safety advantage and actually con

flicted with the requirements of one state). 46 See, e.g., Brown-Forman Distillers Corp. v. New York

State Liquor Authority (invalidating New York price affirmation law, which required liquor distillers and pro ducers selling liquor in New York to seek the permission of the liquor authority before lowering prices in other states, because it effectively gave the state agency the power to control prices beyond the state's borders); Edgar v. MITE Corp., 457 U.Ś. 624,644 (1982)(invalidating Illinois' takeover statute that regulated tender offers for multistate corporations if 10 percent of shareholders were state residents; criticizing the statute's extraterritorial sweep, the majority held that a “state has no legitimate interest in protecting nonresident shareholders”); but, compare C.T.S. Corp. (sustaining Indiana's takeover statute regulating only the corporations that the

state has chartered). 47 The balancing approach in dormant commerce clause

doctrine is associated with its most celebrated statement in Pike v. Bruce Church, Inc.,397 U.S. 137, 142(1970Xinvalidating Arizona law requiring fruit grown within the state to be packed locally). See also Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) (invalidating Arizona's restrictions on the lengths of railroad trains on the basis that whatever slight or marginal improvements to safety the regulation might accrue could not outweigh the great expense and delay that it imposed on railroad travel by deviating from nationally standard practices); Kassel v. Consolidated Freightways, 450 U.S. 662 (1981Xplurality opinion by J. Powell) (invalidating lowa limits on the length of trucking "doubles" by balancing state's safety

interest against the burden on interstate commerce). 48 Among the most forceful opponents of balancing in dor

mant commerce clause cases is Justice Scalia, who argued in concurrence in C.T.S. Corp., 1652-53, that “such an inquiry is ill-suited to the judicial function. ... I do not know what qualifies us to make ... the ultimate (and most ineffable) judgment as to whether, given importance level x, and effectiveness level y, the worth of the statute is ‘outweighed' by impact on commerce z.” This argument largely echoes the position taken by then- Associate Justice Rehnquist against balancing state safety considerations against burdens on interstate commerce in transportation regulations. See, e.g., Kassel, 691-93 (Rehnquist, J., dissenting). Importantly, the majority opinion in C.T.S. did not examine the validity of the Indiana takeover statute under balancing analysis before affirming its constitutionality and, in fact, expressed a reluctance "to second-guess the empirical judgments of lawmakers concerning the utility of legislation,” C.T.S, 1651, citing Kassel, 679 (Brennan, J., concurring). Although it may be implied that the Court is increasingly willing to dispense with the balancing approach in the dormant commerce clause doctrine, the rejection of this

analysis remains to be seen. 49 See Skover, “ “Phoenix Rising' and Federalism Analy

sis,” pp. 295-98 (active judicial intervention in economic regulation under dormant commerce clausc doctrine is theoretically and practically inconsistent with the Supreme Court's reliance on “political safeguards of federalism” in recent commerce clause doctrine); Julian N. Eule, “Laying the Dormant Commerce Clause to Rest,” Yale Law Journal 91 (1982): 425 (evaluation of discriminatory economic measures under different constitutional provisions); Tushnet, “Rethinking the Dormant

Commerce Clause" (focus of inquiry should be distor

tions in state political processes). 50 Sce, e.g., Hughes v. Alexandria Scrap Corp., 426 U.S. 794

(1976) (sustaining a Maryland program designed to reduce the number of junkcd automobiles in the state by establishing a "bouniy” on Maryland-licensed junk cars and imposing more stringent documentation requirements on out-of-state scrap processors than on in-state competitors); White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204 (1983) (upholding an order of the mayor of Boston that all construction projects funded by the city must be performed by a work

force including one-half bona fide city residents). 51 See, e.g., Reeves v. Stake, 447 U.S. 429 (1980) (upholding

the policy of a state-owned cement plant to favor in-state

customers in times of product shortage). 52 See South-Central Timber Development v. Wunnicke,

467 U.S. 82 (1984) (invalidating contractual requirement of Alaska public corporation that timber sold by the state at preferential prices be processed within the state, for imposition of unconstitutional regulatory conditions

downstream in the timber processing market). 53 The takings clause of the Fifth Amendment to the U.S.

Constitution, which restricts the eminent domain powers of the federal government, provides: “nor shall private property be taken for public use, without just compensation.” Identical limitations on the eminent domain authority of state governments have been enforced through the Fourteenth Amendment due process

clause. 54 As will become apparent, the Supreme Court's current

doctrine on the public use” requirement understands that this objective-the securing of a public good-is likely to be served by the “just compensation” requirement: that is, public willingness to pay for a transfer of property suggests that some actual public gain underlies

the taking. 55 Among the most important studies of the history and

normative purposes of the takings clause, see generally Bruce Ackerman, Private Property and the Constitution (New Haven: Yale University Press, 1977); Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985); Frank I. Michelman, “Property, Utility and Fairness: Comments on the Ethical Foundations of Just Compensation' Law,Harvard Law Review 80 (1967); 1165; Joseph L. Sax, “Taking and the Police Power," Yale Law Joumal 74 (1971): 36; Joseph L. Sax, “Takings, Private Property and Public Rights,” Yale Law Joumal 81

(1971): 149. 56 The Supreme Court itself has acknowledged as much, in

admitting a lack of determinate rules or standards in the takings clausc doctrine. Consider Justice William Brennan's statement in the opinion of the Court in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978):

[T]his Court, quilc simply, has been unable to
develop any“sct formula" for determining when
"justice and fairness” require that economic in-
juries caused by public action be compensated
by the government, rather than remain dispro-

portionately concentrated on a few persons. 57 See, e.g., Pumpelly v. Green Bay and Mississippi Canal

Co., 80 U.S. 166 (1871) (destruction of private property

by government-caused flooding). 58 In Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982), the Supreme Court recognized that a "taking” generally will be found in the case of a governmentally authorized permanent physical occupation of private property. The Court's decision in Loreito invalidated a New York statute that required landlords to permit a cable television company to install cable facilities on rental land and buildings. Compare Federal Communications Commission v. Florida Power Corp., 94 L. Ed. 2d 282 (1987) (upheld federal statute authorizing the FCC to review the rates that utility companies charge cable operators for the use of utility poles, distinguishing Loreito on the basis that nonconfiscatory regulation of rates chargeable for the use of private property devoted to public uses is not a “taking"). See also United States v. Causby, 328 U.S. 256, 261(1946) (frequent flights immediately above a landowner's property constituted a “taking" "as complete as if the United States had entered upon the surface of the land and taken exclusive posses

sion of it.”). 59 See, e.g., Northwestern Fertilizing Co. v. Hyde Park, 97

U.S. 689 (1878Xdenying compensation for the banishment of a fertilizing company, originally located outside of Chicago city limits, when the area became inhabited); Village of Euclid v. Ambler Realty Co., 272 U.S. 365,368 (1926Xdenying compensation in enforcement of local zoning ordinanceX“a nuisance may be merely a right thing in the wrong place, like a pig in a parlor instead of

the barnyard”). 60 See, e.g., Miller v. Schoene, 276 U.S. 272 (1928%uncom

pensated governmental destruction of red cedar trees infected with a rust endangering nearby apple trees analogized to the regulatory abatement of a public nuisance at common law); Goldblatt v. Hempstead, 369 U.S. 590 (1962 upholding as a "safety regulation" a zoning law prohibiting a sand and gravel mining enterprise from excavating below the water table, in part on the basis of inconclusive evidence of substantial diminution of the

property value) 61 The Supreme Court has acknowledged that the judicial

finding of a “taking” of property involves ad hoc decisionmaking based on the facts of a particular case. Consider Justice William Brennan's statement in the majority opinion of Penn Central Transportation Co. v. New York City, 123-24:

[The question of what constitutes a "taking" for
purposes of the Fifth Amendment has proved to
be a problem of considerable difficulty. ... [In-
deed, we have frequently observed that whether
a particular restriction will be rendered invalid
by the government's failure to pay for any losses
proximately caused by it depends largely “upon

the particular circumstances (in that] case." 62 See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

(1922) (state statute prohibiting underground coal mining which might damage surface property, as applied to affect the rights of a private coal company to engage in such mining under a deed executed by the surface homeowner's predecessor in title, worked a “taking” as it would "destroy previously existing rights of property and contract."). Of course, the question that is difficult to answer is how much diminution in value is “too much." Both before and after Pennsylvania Coal Co., the Supreme Court has indicated a strong reluctance to find a "taking” only on the basis of this variable, at least in the absence of total destruction of property rights. See, e.g., Hadachek v. Sebastian, 239 U.S. 394 (1915) (decrease of value from $800,000 to $60,000 sustained as an uncompensated regulatory loss); Penn Central, 131 ("[T]he de

cisions sustaining other land-use regulations (reject) the proposition that diminution in property value, standing alone, can establish

a “taking"). Indeed, the viability of Pennsylvania Coal Co. itself is in serious question, as the Supreme Court has appeared to undermine its reasoning (although not to reverse its holding) in the recent decision of Keystone Bituminous Coal Association v. DeBenedictis, 107 S.Ct. 1232 (1987) (upholding Pennsylvania statute that authorized a regulatory requirement of maintenance of 50 percent of coal beneath structures as a means of providing surface support for public buildings, private residences, and cemeteries, on the ground that the act would not interfere unduly with investment

backed expectations). 63 In this regard, compare Penn Central, 136 (New York's

historic landmarks preservation law permits Penn Central's continued operation as a railroad terminal containing office space and concessions, and thereby “does not interfere with what must be regarded as Penn Central's primary expectation concerning the use of the parcel (or its ability) to oblain a ‘rcasonable return' on its investment") and Kaiser Actna v. United States, 444 U.S. 164 (1979) (federal government's attempt to create a public right of access to a lagoon that had been dredged for use as a private marina waterfront found to destroy the investment-backed expectations of the private lagoon

owner). 64 See, e.g., Penn Central, 137. The New York landmarks

preservation law allowed owners of landmark sites who had not developed their property to the full extent otherwise permitted under zoning laws to transfer their development rights to contiguous parcels on the same city block. In its determination that the economic impact of the law fell short of a “taking,” the Supreme Court took account of the provision of these transferable developmental rights as a feature that “enhances the economic position of the landmark owner in one significant respect." The Supreme Court's understanding of the "average reciprocity of advantage" appears to have taken an unexpected turn in Keystone Bituminous Coal Association v. DeBenedictis (balancing the burdens on coal companies imposed by mine subsidence regulation against the benefits accruing to the companies from restrictions falling on others in different regulatory schemes). For an insightful critique of this approach, see Epstein, “Takings: Descent and Resurrection," in Philip Kurland, ed., 1987 Supreme Court Review (Chicago: University of Chicago Press, 1987), pp. 22-23 ("For Holmes the test of average reciprocity of advantage was really a way of asking whether the parties whose property was taken received compensation in-kind for the loss in question in the same transaction. ... Indeed, under Stevens's misdirected rendering of Holmes's test, no restrictions on use ever could be unconstitutional because the state

might also right the balance on some future occasion.") 65 See Clark v. Nash, 198 U.S. 361 (1905); Strickley v. High

land Boy Gold Mining Co., 200 U.S. 527 (1906). 66 See Tribe, American Constitutional Law, 8-5 and 9-2. 67 Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240

(1984) (Hawaii Land Reform Act served a valid "public use” by employing eminent domain to enable homeowners with long-term land leases to purchase the lots on which they lived). In the last three to four decades, the "public use" doctrine has been assimilated conceptually with the "public purpose" and "rational relationship" standards applied in reviewing regulations of economic interests under the due process clause. See, e.g., Berman v. Parker, 348 U.S. 26 (1954). Essentially, the Supreme

ing” is found, the owner must be compensated for the

full period. 75 Though exploration of the question is beyond the scope

of this analysis, it is interesting to ask whether state and local governments may limit somewhat their exposure to crippling liability for interim damages by enacting more stringent statutes of limitation on inverse condemnation

actions challenging land use regulations. 76 Professor Richard Epstein makes the point that a broad

reading of First English and Nollan would have a combined influence that could shift the cost-benefit calculations for land developers who perceive an increased “rate of return” from suits challenging land-use regulations. Epstein, “Takings: Descent and Resurrection,”

pp. 43-44.

Court has established that, so long as the statc's use of eminent domain is rationally related to a conceivable public purpose, the "public use" requirement is satisfied. See Berman, 17-19 (discussion of "rational relationship" standard in economic due process doctrinc). The relationship between the broad approach to the "public use" doctrine in eminent domain and the due process “public purpose" doctrine is described in Arvo Van Alstyne, “Public Use,” 3 Encyclopedia, p. 1494, and Harry N. Scheiber, “Public Purpose Doctrine," 3 Encyclopedia, p.

1489. 68 See Nollan v. California Coastal Commission, 107 S.Ct.

3141 (1987) (invalidating state land-use regulation that conditioned the issuance of a permit to rebuild an oceanfront residence on the property owners' grant to the public of a permanent easement across their beach). The Nollan Court found that the easement condition did not substantially advance the government's alleged purposes, including the public's ability to see and gain access to the beach from the streets in front of the home. The Court concluded that, “unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but ‘an out-and-out plan of extortion.' ”.

Nollan, 3148. 69“It is [by) now commonplace that this Court's review of

the rationality of a State's exercise of its police power demands only that the State ‘could rationally have decided' that the measure adopted might achieve the State's ob

jective." Nollan, 3151 (Brennan, J., dissenting). 70 In an “inverse condemnation" action, the private prop

erty owner sues to establish that the government has effectively appropriated his property and must pay for it. If the court finds a “taking," the court will order payment of just compensation. This action is distinct from a mandamus or declaratory judgment action, in which the private owner merely claims that a governmental regulation affecting his property violates his due process rights. Should the court find such a violation, it will merely invalidate the regulation as applied prospectively to the

property. 71 Typically, state courts had not subjected state or local

governments to damages or an inverse condemnation award for a legislative or regulatory action that was found to be a taking; they regarded the invalidation of the regulation as the only proper remedy, leaving the private landowner with full prospective use of his property. Essentially, the state courts had denied the private owner any compensation for the “temporary taking” of his property that occurred between the effective date of the state or local regulation and the effective date of the judicial invalidation of the regulation. See, e.g., Agins v. Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979), affirmed on

other grounds, 447 U.S. 255 (1980). 72 First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, 107 S.Ct. 2378, 2388 (1987) (“temporary" takings that deny a landowner all use of his property are not different from permanent takings, for

which the Constitution clearly requires compensation). 73 Ibid., 2389 (indicating that the “temporary taking” doc

trine will not apply in the case of “normal delays in obtaining building permits, changes in zoning ordinances,

and the like"). 74 The First Evangelical Court did not address the valu

ation of the "temporary taking" for purposes of "just compensation.” It only indicated that, when such a “tak

77 In pertinent part, Amend. XIV, 1 to the U.S. Constitution provides:

[N]or shall any State deprive any person of life,
liberty, or property, without due process of law,
nor deny to any person within its jurisdiction the

equal protection of the laws. 78 Sec, e.g., Lochner v. New York, 198 U.S. 45 (1905) (in

validating a New York law regulating the hours and wages of bakery employees as an abridgement of the liberty of contract that violated the due process rights of both employees and employers); Adkins v. Children's Hospital, 261 U.S. 525 (1923) (invalidating a law that established minimum wages for women under due process and equal protection rationales). Between 1899 and 1937, the Supreme Court invalidated state or federal economic and social regulations under the due process clause, usually coupled with the equal protection clause, in approximately 200 cases. For comprehensive surveys of the Court's rulings in this period, see Benjamin F. Wright, The Growth of American Constitutional Law (New York: Reynal and Hitchcock, 1942), pp. 153-168; Normal Jerome Small, ed., The Constitution of the United States; Analysis and Interpretation (Washington DC: U.S.

Government Printing Office, 1964) 79 Among the most celebrated cases articulating the con

temporary doctrines of economic substantive due process and equal protection, see, e.g., Williamson v. Lee Optical Co., 348 U.S. 483 (1955) (sustaining Oklahoma statute that prohibited an optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist, challenged on due process and equal protection grounds); Railway Express Agency v. New York, 336 U.S. 106 (1949) (sustaining a New York City traffic regulation that banned commercial vehicular advertising, except for the vehicle owner's own prod

ucts) 80 See, e.g., Williamson v. Lee Optical Co., 488 (“It is

enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it."); Minnesota v. Clover Leaf Creainery Co., 449 U.S. 456, 464 (1981) ("Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, they cannot prevail so long as ‘it is evident from all the considerations presented to (the legislature), and those of which we may take judicial notice, that the question is at least debatable.'”). In contrast to the Warren Court years, the Burger Court era appeared occasionally to infuse a little “bite" into the “mere rationality" standard. See, e.g., City of Cleburne v. Cleburne Living Center, 105 S.Ct. 3249 (1985) (invalidating under the equal protection clause the application of a municipal zoning ordinance to deny a special permit for the operation of a group home for the mentally retarded). Clearly, however, such cases expressed the exception to “mere rationality,” rather than the rule, for

the Burger Court. 81 See, e.g., Metropolitan Life Insurance Co. v. Ward, 470

U.S. 869 (1985) (invalidating Alabama insurance regulation that taxed out-of-state companies at a higher rate than domestic companies for the illegitimate purpose of promoting the business of domestic insurers by penalizing foreign insurers); Williams v. Vermont, 105 S.Ct. 2465 (1985) (invalidating Vermont automobile sales tax scheme that allowed a credit against state use tax for any sales tax paid in another state only if the taxpayer were a

Vermont resident at the time the car was purchased). 82 In Metropolitan Life Insurance Co., the majority reasoned:

Alabama's aim to promote domestic industry is
purely and completely discriminatory, designed
only to favor domestic industry within the State,
no matter what the cost to foreign corporations
also seeking to do business there. Alabama's
purpose ... constitutes the very sort of parochial
discrimination that the Equal Protection Clause
was intended to prevent.... [T]his Court always
has held that the Equal Protection Clause for-
bids a State to discriminate in favor of its own
residents solely by burdening "the residents of

other state members of our federation." 83 Metropolitan Life Insurance Co. was decided by a nar

row majority of five Justices, with Justice Powell writing the opinion of the Court and Justices O'Connor, Brennan, Marshall and Chief Justice Rehnquist in dissent. Of course, Justice Kennedy's arrival on the Court and any changes in the Court's composition in the near future would render any projections regarding a “new era” of constitutional protection for private economic liberty (under the equal protection clause, however, instead of under economic substantive due process) totally specula

tive. 84 This point was demonstrated emphatically by the dis

senting Justices in Metropolitan Life Insurance Co., who viewed the majority opinion as charting an "ominous course," that “has serious implications for the authority of Congress under the Commerce Clause." Noting that Congress in the McCarran-Ferguson Act had explicitly placed insurance regulation “firmly within the purview of the several States," the dissenters objected to the majority's use of the equal protection clause as an instrument of federalism: “Surely the Equal Protection Clause was not intended to supplant the Commerce Clause, foiling Congress' decision under its commerce powers to‘affirmatively permit (some measure) of parochial favoritism' when necessary to a healthy federalism.” 470 U.S. at

899 (O'Connor, J., dissenting). 85 Indeed, soon after Metropolitan Life Insurance Co. was

decided, the Court unanimously upheld against challenges under the commerce and equal protection clauses the laws of Connecticut and Massachusetts, that limited the creation or acquisition of in-state banks to banking corporations located in the six-state New England region. Northeast Bancorp, Inc. v. Board of Governors of Federal Reserve System, 472 U.S. 159 (1985). 'The Court found that a federal statute, thc Bank Holding Company Act of 1956, itself authorized the individual stalcs to balkanize the banking industry. Moreover, the Court deemed the “independence of banking institutions” to

be a legitimate state objective to which the laws bore a rational relationship. In concurrence, Justice O'Connor argued that the state schemes in Northeast Bancorp were indistinguishable from that in Metropolitan Life Insurance Co., and suggested that the latter ruling might have confined Metropolitan Life to its peculiar facts. 772

U.S. 178-9 (O'Connor, J., concurring). 86 Sec Sunstein, "Naked Prescrences and the Constitu

tion,” Columbia Law Review 84 (1984): 1689. 87 Art. III, 2 of the U.S. Constitution provides:

The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties
made, or which shall be made, under their

Authority. The text of Art III would appear to grant appellate jurisdiction to the Supreme Court to review any state court decision involving a question of federal law, regardless of the manner in which the state court resolved the case, and to grant original jurisdiction to inferior federal courts to decide any such case in the first instance. Doctrinal restraints on such an expansive power have been self-imposed by the Supreme Court and lower federal courts, in their interpretation of Art. III and federal

statutory grants of jurisdiction. 88 As articulated concisely by the Supreme Court in Fox

Film Corp. v. Mueller, 296 U.S. 207, 210 (1935), the independent and adequate state grounds doctrine embodies "the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, (Supreme Court) jurisdiction fails if the nonfederal ground is independent of the federal ground and adequate to support the judg

ment." 89 For example, if a state high court determines that the

right of the media to broadcast copies of court tape recordings can be upheld under both the First Amendment of the U.S. Constitution and state constitutional guarantees of speech and press rights, the U.S. Supreme Court should deny appellate jurisdiction to review the state cour's potentially erroneous decision under the First Amendment, provided the state constitutional law holding does not rely substantively on the federal law decision and would sustain the judgment alone if the federal law holding were undermined upon review. See State v. Coe, 101 Wash. 2d 364, 679 P.2d 353, 359-62

(1984). 90 In Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945), Justice

Robert Jackson characterized the doctrine as a preventative against Supreme Court issuance of “advisory opinions” in violation of the Art. III case or controversy requirements. Arguably, use of this metaphor is unfortunate. By casting the doctrine as a device to prevent “advisory opinions," Justice Jackson raised it to the level of a constitutional justiciability requirement, similar to the standing or political question doctrines. This characterization does not recognize the nature of the restraint as a self-imposed or prudential limitation on the Supreme Court's appellate jurisdiction. For critiques of the constitutional basis for the doctrine, see, e.g., Richard A. Matasar and Gregory S. Bruch, “Procedural Common law, Federal Jurisdictional Policy, and Abandonment of the Adcquale and Independent State Grounds Doctrine." Columbia Law Review 86 (1986):

1291, 1317-22. 91 Several well-established principles guide Supreme Court

review of a state high court judgment that bars consideration of a federal law claim bccausc of a procedural default: 1) The determinative issue-whether a federal law

claim was sufficiently and properly raised in the state courts-is itself ultimately a question of the "adequacy" of the state law ground. Because the issue implicates the scope of the Supreme Court's own jurisdiction, it presents a federal question as to which the Court is not bound by the state court rul

ing. Street v. New York, 394 U.S. 576, 583 (1969). 2) The enforcement of state court procedure at the ex

pense of a hearing of a federal law claim, at the very least, must pass muster under the “fundamental fairness” requirements of the Fourteenth Amendment due process clause. Reece v. Georgia, 350

U.S. 85 (1955). 3) Even enforcement of a state court procedural

rule would meet "fundamental fairness," it will not bar Supreme Court review of a federal claim if the rule were applied with a specific intent to deprive a claimant of his federal rights or if it "unreasonably interfer(ed) with the vindication of such rights.” James v. Kentucky, 466 U.S. 341, 348-9 (1984) (state procedural requirement had not been consistently applied in prior cases); Williams v. Georgia, 349 U.S. 375, 383 (1955) (state court refusal to exercise discretion deemed “in effect, an avoidance of the

federal right”). Although the Supreme Court appeared to expand the scope of its review despite procedural default in Henry v. Mississippi, 379 U.S. 443, 447 (1965) (balancing the importance of the claim of federal right against the utility of the state's enforcement of its procedural requirement in the specific case at bar, insofar as it furthers a legitimate state interest), subsequent retrenchment in the Court's standards for federal habeas corpus jurisdiction may have undermined the intellectual supports for Henry's broad approach to the Court's direct appellate review. See, e.g., Stone v. Powell, 428 U.S. 465 (1976) (no habeas corpus relief if state court procedure afforded a “full and fair” opportunity to litigate a federal constitutional claim); Wainwright v. Sykes, 433 U.S. 72 (1977) (habeas corpus review of state court judgment turning on failure to comply with "contemporaneous-objection” rule barred unless defendant demonstrates “cause" for the

procedural defect and resulting “prejudice"). 92 Assuming the “independence” of a state substantive law

basis for a judgment, as long as the basis itself did not vio late the federal Constitution, it generally would be

deemed "adequate." 93 See, e.g., State v. Badger, 141 Vt. 430, 450 A.2d 336, 347

(1982) (claimant's rights sustained independently under Vermont Constitution after determining that there was a corresponding right available under federal law); State v. Coe, 361-62 (first granting relief under state constitutional law, and then proceeding to establish federal

claims under federal law). 94 For classic examples of state court rulings that automati

cally presume that federal constitutional decisions shape the character and contours of state constitutional law guarantees, see, e.g., Washington v. Fireman's Fund Inc. Co., 708 P.2d 139 (Haw. 1985); State v. Jackson II, 672 P.2d 255, 260 (1983) (discussed and critiqued in Ronald Collins, “Reliance on State Constitutions: The Montana Disaster,” Texas Law Review 63 (1985): 1095). Both decisions sustained the constitutionality of the state laws against challenges by the rights claimants. An insightful

and imaginative account of sour conceptual models for the “relationships” of state and federal constitutional laws is presented in Collins and Galie, “Models of Post

Incorporation Judicial Review.” 95 Michigan v. Long, 463 U.S. 1032 (1983). Prior to Michi

gan v. Long, the Supreme Court had adopted a variety of methods for resolving the issue of the “independence” of a state law ground: (1) dismissal in the case of unclear grounds for decision, see, e.g., Lynch v. New York, 293 U.S. 52 (1934); (2) remand to the state high court for clarification of the grounds for decision, see, e.g., Minnesota v. National Tea Co., 309 U.S. 551 (1940); (3) examination of state law rulings to discern whether state courts generally used federal law merely to guide application of state law, see, e.g., Texas v. Brown, 460 U.S. 730 (1983Xplurality opinion). These cases and other similar decisions were cited and characterized as failing impor

tant interests of federalism by the Michigan Court, 1038. 96 Ibid., 1041. 97 Ibid. (emphasis added). 98 Laurence Tribe considers this ramification of the Michi

gan v. Long standard to be central to the autonomy of

state law. See Tribe, American Constitutional Law, p. 166. 99 Michigan, 1041. Critics of the Michigan v. Long ap

proach have argued, of course, that the balance among federalism interests was struck in a manner that accords insufficient respect for state court autonomy. Mr. Justice Stevens, in his dissenting opinion in Michigan v. Long, claimed to be “thoroughly baffled by the Court's suggestion that it must stretch its jurisdiction and reverse the judgment of the Michigan Supreme Court in order to show ‘respect for the independence of state courts.'” Michigan, 1072 (J. Stevens, dissenting). See, e.g., Ronald Collins, “Reliance on State Constitutions: Some Random Thoughts,” Mississippi Law Joumal 54 (1984): 371, 400-01 (suggesting a "less intrusive presumption" to vindicate the autonomy of state judiciaries, such as a rule on unreviewability in the absence of a “plain statement" that state law does not provide the relief sought). Contrast Martin Redish, “Supreme Court Review of State Court 'Federal Decisions: A Study in Interactive Federalism,” Georgia Law Review 19 (1985): 861 (arguing that Michigan v. Long is not “invasive” of state court preroga

tives in any meaningful sense). 100 An enigmatic footnote in the Michigan v. Long majority

opinion, 1041 n. 6, gives reason for concern over what, indeed, will constitute a sufficient demonstration of a "bona fide separate, adequate, and independent” state law ground:

There may be certain circumstances in which
clarification is necessary or desirable, and we will
not be foreclosed from taking the appropriate

action. Post-Long decisions indicate that the Supreme Court may well excrcise revicw in the face of any ambiguity over the basis of a state high court judgment. Compare Ohio v. Johnson. 467 U.S. 493 (1984) and Florida v. Myers, 446 U.S. 380 (1984) (appellate review due to fail ure to indicatc clearly that decision was based ultimately on state law) with Úhlcr v. AFL-CIO, 468 U.S. 1310 (1984) (California Supreme Court's prohibition of a ballot initiative rested on independent state ground because

of state court's detailed analysis of state law). 101 All of the analytic devices described in the text were em

ployed to advantage in Carreras v. City of Anaheim, 768 F.2d 1039 (9th Cir. 1985) (municipal ordinance banning solicitation of religious donations outside public conven

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