"Zombie laws"


The springing back to life of the 1864 Arizona abortion statute currently in the news presently reminds me of the topic of "zombie laws." 

Those are state statutes that are rendered unenforceable by a holding of federal unconstitutionality in a court case. The statutes are not removed from the state statute books by the entry of a federal court judgment holding the statute unconstitutional. And unless the state legislature goes ahead to void them, such statutes survive--as "zombie statutes"--and if and when the federal holding of unconstitutionality is overturned by an appropriate court, the state's zombie statute will spring back to life . . . a la the Arizona situation.

The best thing I have seen on this topic is this 2022 law review article: Howard M. Wasserman, "Zombie Laws," available free at: ssrn.com/abstract=3778122

Also the Fifth Circuit has spoken about zombie laws in Pool v. City of Houston, 978 F.3d 307 (5th Cir. 2020).