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"Using State Law to Protect Federal Constitutional Rights: Some Questions and Answers About Converse-1983," 64 U. Colo. L. Rev. 159 (1993)


Several years ago, I published an overly long article entitled ''OJ Sovereignty and Federalism." The article touched on many issues-nullification, secession, the Tenth Amendment, and sovereign immunity, to name a few. Some of the issues raised in the article have been rather widely discussed-among Supreme Court Justices, on various federal courts of appeals, and in the general law review literature. Although participants in these discussions may not always agree with my ideas, they at least seem aware of them. Yet in regard to what I considered the most interesting section of the article, involving what I labelled "converse-1983" laws, the judicial, legislative, and academic response has been almost complete silence. Perhaps this is because my analysis of converse-1983 laws was so obvious-or alternatively, so obviously wrong-that no response seemed necessary. However, on the off chance that my initial approach was neither obvious nor obviously wrong, I now propose to reexamine converse-1983 laws. At the very least, this reexamination can help clarify various issues of federalism and jurisdiction, of right and remedy. But more ambitiously, I hope this reexamination will make the legal community more aware of a dramatic set of progressive actions that states may take in the service of federal constitutional rights.

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