This paper is based on remarks delivered at a symposium to honor my University of New Hampshire School of Law colleague Calvin Massey, who passed away in the fall of 2015. The paper discusses an asymmetry in federal standing law. The asymmetry lies in the fact that, when a state’s highest court decides the merits of a federal claim brought in circumstances where the claimant has standing under state law but not federal law, the United States Supreme Court has jurisdiction to review the decision only if the state supreme court upholds the federal claim. This asymmetry was the subject of a 2015 essay that was Calvin’s last piece of published scholarship. In the essay, Calvin used a hypothetical state-aid-to-religion fact pattern to illuminate the asymmetry, to emphasize its problematic nature, and to propose a solution.
This paper agrees with Calvin that the asymmetry is problematic and advances three preliminary hypotheses, to be developed in future work, about how various federal and state institutional actors could ameliorate the problem. The first hypothesis is that Congress should consider legislating to ensure that a party facing a federal claim in state court in circumstances where a federal justiciability doctrine would bar the claim in federal court can remove the claim and obtain its dismissal. The second hypothesis is that the United States Supreme Court should consider using its power to create constitutional common law to fashion remedy-limiting doctrines drawn from federal justiciability principles and to impose these doctrines on state courts as affirmative defenses to federal claims. The third hypothesis is that, even in the absence of a federal mandate, state courts should apply conflict-of-laws theory to withhold relief for claims based on federal law in circumstances where federal courts would lack the power to afford the claimant a remedy.