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Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai
Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai
Cornell Law Faculty Publications
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 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 borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated …
The Paths To Legal Equality: A Reply To Dean Sullivan, Michael C. Dorf
The Paths To Legal Equality: A Reply To Dean Sullivan, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.