University of Arkansas at Little Rock Law Review

Document Type



This note examines the history of judicial federalism by discussing the history of its use, as well as the analytical models that have been produced by its various adoptive jurisdictions. The development of these models has given courts much authority in determining the scope of individual rights within their respective jurisdictions. Further, a discussion follows that explores the criticisms directed at the use of such authority.

This note also examines the Arkansas Supreme Court's adoption and use of judicial federalism as a necessary safeguard against governmental infringements on individual rights, particularly those involving the right to privacy. Although such cases initially focused on consent-to-search issues, they later extended to matters of intimate association. Next, this note discusses Department of Health and Human Services v. Howard ("Howard II'), wherein affected individuals challenged the Arkansas prohibition on homosexual foster parents. It will then explain how the Arkansas Supreme Court did not apply its judicial federalism precedent to that case, despite the appropriateness of doing so. The court's failure to utilize its jurisprudence puts the future of judicial federalism in question, and it places thousands of Arkansans at risk of further rights restrictions. Therefore, this note offers what would have been an appropriate judicial federalism analysis of Howard II, thereafter discussing the substantive result that could have been achieved through adherence to Arkansas precedent. Further, a commentary is offered on the groups at risk after the Arkansas Supreme Court failed to adhere to its precedent.

Howard II is a departure from the Arkansas Supreme Court's judicial federalism precedent. Arkansans must now wait until the Arkansas Supreme Court advises the state as to what jurisprudential course it is now charting. If it is a return to the lockstep analysis of the past, then at-risk groups may no longer look to their sovereign state constitution as an additional guarantee of individual rights where federal protection is lacking. If it is a continuation of judicial federalism, then the court must act quickly to rectify its jurisprudential lapse in Howard II and perhaps explain why its "embraced" tradition was momentarily abandoned.