Constitutional Borrowing

Authors

Nelson Tebbe, Brooklyn Law SchoolFollow
Robert L. Tsai, American University, Washington College of LawFollow

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 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 with liberty, on the one hand, and equality, on the other We finish by discussing how attentiveness to borrowing may illuminate or improve prominent theories of constitutional lawmaking.

Recommended Citation

Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 459 (2010).
Available at: https://repository.law.umich.edu/mlr/vol108/iss4/1