Judicial federalism scholarship has concentrated on the interplay between the U.S. Supreme Court and state supreme courts for incorporated rights, where the former sets the floor for rights in the states. But little has been said about judicial federalism and the unincorporated rights, where states are unrestricted in their freedom to define the rights. The Seventh Amendment presents a one-of-a kind experiment in judicial federalism, as the only federal constitutional right that is duplicated in the great majority of state constitutions and has generated an appreciable body of case law. In this Note, I analyze the evolution of state court treatment of the intertwined-issues problem, both before Beacon Theatres, Inc. v. Westover announced the federal rule, and today. Surprisingly, I reveal first, a genuine split of authority in the states between the Beacon Theatres rule and a narrower rule, and second, that the states had nearly uniformly agreed to the narrower rule before Beacon Theatres—a fact not discussed by the Beacon Theatres Court or litigants. The Beacon Theatres decision has transformed the doctrinal landscape over more than fifty years; many state courts have uprooted their state rules and planted the federal rule in its place. This Note concludes that state supreme courts need a distinct approach for unincorporated rights, such as the Seventh Amendment, to serve judicial federalism norms.


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