State-Court Departures from the Supreme Court: A Comprehensive Survey
50 Pages Posted: 14 Mar 2023
Date Written: March 10, 2023
Abstract
This Article canvasses the 1,013 cases from the U.S. Supreme Court to which Westlaw has assigned “Not Followed on State Law Grounds” tags (so far), about a thirtieth of the 29,956 cases in Harold J. Spaeth’s database on the Court. These cases feature a total of 1,868 such departures. California has the most, 114, followed by Texas with 92, Washington with 89, New York with 73, and Massachusetts and Hawaii with 67 each. All states have some departures; Maine at six has the fewest. The cases triggering the most departure are Daubert v. Merrell Dow Pharmaceuticals, Inc., (1993), on the standards for expert testimony, with 24 departing states, United States v. Leon (1984), establishing a good-faith exception to the exclusionary rule, with 17, California v. Hodari D. (1991), holding that a chase is not a Fourth Amendment “seizure,” with 16, Illinois Brick Co. v. Illinois (1977), denying antitrust standing to indirect purchasers, with 15, and Moran v. Burbine (1986), allowing police not to inform a suspect that a lawyer wanted to talk to him, with 14.
A predecessor article canvassed the Court’s 342 Fourth Amendment cases, finding 306 departures from 125 cases. The Fourth Amendment subset and the full set feature the same overall statistically-significant correlations with characteristics of Supreme Court cases: older cases have fewer departures, those with dissents have more, and those that have been overruled do not significantly correlate with departures. The Fourth Amendment subset features very different statistically-significant correlations, however, with state characteristics. A state’s population was not significantly correlated with Fourth Amendment departures but is the most significant factor for overall departures. State income is significantly related to overall departure but not Fourth Amendment departure, while a state’s partisan tilt is related in both areas. States’ methods of choosing judges, however, are not significantly correlated with either overall or Fourth Amendment departures.
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