Academic

Tebbe & Tsai on Constitutional Borrowing

By Lawrence Solum

Nelson Tebbe and Robert L. Tsai (Brooklyn Law School and American University - Washington College of Law) have posted Constitutional Borrowing (Michigan Law Review, Vol. 108, 2009) on SSRN. Here is the abstract:

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains surprisingly underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of cross-pollination, and identifies some of the risks involved. We invite readers to think of borrowing as something that happens during not only the drafting of a constitution, but also its implementation. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated with liberty, on the one hand, and equality, on the other. We finish by discussing how confronting the practice of borrowing may illuminate or improve prominent theories of constitutional lawmaking.

I read an earlier version of this--very interesting & recommended.

Full post as published by Legal Theory Blog on April 21, 2009 (boomark / email).