January 2010 Vol. 108 No. 4 THE REVIEW
ARTICLES

Constitutional Borrowing

Nelson Tebbe & Robert L. Tsai

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.

 

Michael Halley has written a First Impressions essay response to Professors Tebbe and Tsai.

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Fixing Patent Boundaries

Tun-Jen Chiang
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NOTES

Preserving a Racial Hierarchy: A Legal Analysis of the Disparate Racial Impact of Legacy Preferences in University Admissions

Kathryn Ladewski

Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their nonwhite counterparts, because past generations of college students were less diverse than today's applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not been shown to promote (and do not promote) any legitimate university purpose.

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The Implications of IFRS on the Functioning of the Securities Antifraud Regime in the United States

Lance J. Phillips
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