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Long on Demosprudence & Sheff v. O'Neill

By Lawrence Solum

Justin R. Long (University of Connecticut School of Law) has posted Demosprudence, Interactive Federalism, and Twenty Years of Sheff V. O'Neill ( Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract:

Professor Lani Guinier and others have recently developed a theory called "demosprudence" that explains the democracy-enhancing potential of certain types of U.S. Supreme Court dissents. Separately, state constitutionalists have described state constitutions' capacity to offer a base of resistance against the U.S. Supreme Court's narrow conception of individual rights. Applying these two seemingly unrelated theories to school desegregation litigation in Connecticut and to same-sex marriage litigation in Iowa, this essay suggests that certain state constitutional decisions might function like U.S. Supreme Court dissents to enhance democratic activism. In this way, interactive federalism might usefully serve as a category of demosprudence.

Full post as published by Legal Theory Blog on September 11, 2009 (boomark / email).