The forthcoming article, “Into the Words: Using Statutory Text to Explore the Impact of Federal Courts on State Policy Diffusion” by Rachael K. Hinkle is summarized here:
We often hear people say that it’s important to learn from your mistakes. I always figured it’s even better to learn from someone else’s mistakes. One of the key strengths of our federal system of government is that each of the fifty states can learn from one another’s experiences, both good and bad. When we elect state legislators to office, we do not expect them to re-invent the proverbial wheel with every policy decision. Time is a scarce resource in their job, just as it is for all of us. Efficiency becomes key. A particularly efficient way to make policy it to seek out successful policies from other jurisdictions and borrow not only the ideas contained therein, but even use the same phrasing. Borrowing text does not just save time drafting a law. It can have a much more important benefit. State laws have to comply with the U.S. Constitution. When a state law is struck down in the federal courts because this requirement was not met, the time state legislators spent on the law is wasted. State lawmakers can minimize this risk by finding a law from another state that the federal courts have said is constitutional and using the same language in their own law. And they can learn from mistakes as well. If another law is declared unconstitutional, it only makes sense to avoid using the text of that law.
Lawmakers can choose to spend their time on a variety of issues. The success or failure of a particular type of law in the courts can help them make the decision about whether to work on a new law at all. If the courts have struck down another state’s attempt, it makes less sense to spend time trying to pass a law. Conversely, if such laws have been upheld it will be less risky for lawmakers to devote time and effort to getting a law passed.
I look for evidence of such patterns using a collection of all state laws passed from 1973 to 2010 that address six different types of abortion regulation. Using these laws and information on all federal appellate court rulings regarding their constitutionality, I evaluate whether court rulings make adoption of a particular type of law more or less likely in a given year and whether new laws are drafted differently based on such court rulings. I measure how much text a new law borrows using software originally designed to detect plagiarism. This software calculates the percentage of the phrasing in the new law that is borrowed from each relevant existing law.
The results vary for different types of courts, but overall there is broad evidence that court rulings of constitutionally influence both adoption of laws and their content. When the Supreme Court declares that a law is constitutional, the probability that other states will adopt the same type of law is 27% higher than when there is no court ruling. In general, about 3% of the text of a new law is borrowed, but when the Supreme Court has ruled a previous law constitutional, that number more than doubles to 7%.