Arguing Gunwall: The Effect of the Criteria Test on Constitutional Rights Claims

Abstract

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 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 briefing 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 considering how lawyers respond to court signals not only in the presence or absence of certain legal arguments but also in the content of those arguments.