University of Cincinnati Law Review


In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time and is all the more untrue today. Accordingly, this article catalyzes a new parity debate. By retheorizing parity as the question of the comparative capacity of state and federal court systems, a wide range of interdisciplinary empirical and normative scholarship becomes newly relevant to the core question of the relative competence of state and federal courts.

Proposing a parity paradox of its own, the article shows that this flowering of relevant empirical scholarship asks the field of federal courts to open a new normative conversation around the broader question of what makes for a normatively acceptable court system, and what it would take for both the state and federal courts to achieve that ideal of justice. This question is particularly timely given renewed public attention to criminal justice reform and efforts to redress police brutality via § 1983 claims. The article concludes by calling for federal courts scholars to look beyond the Supreme Court in answering the normative question of parity and instead direct critique and advocacy to Congress, state legislatures, the lower federal courts, and state judiciaries.