David S. Rubenstein (Washburn University Law School) has posted Self-Help Structuralism (Boston University Law Review, 2015 Forthcoming) on SSRN. Here is the abstract:
Self-help enclaves in the law permit an actor to take otherwise unlawful action to redress another’s wrongdoing. In Self-Help and the Separation of Powers, David Pozen suggests bringing self-help to the constitutional fold. Pozen dexterously navigates his thesis through a number of separation-of-powers thickets, but he does not factor in federalism. Filling that void, this Article constructs a two-dimensional model of “self-help structuralism” — one that accounts for federalism and separation of powers simultaneously. More specifically, this Article illustrates how states engage in self-help too, often in looping feedback with the federal branches. Appreciation for this cross-dimensional dynamic offers better purchase on the idea that constitutional self-help is happening. Yet it also instigates a fresh mix of anxieties over whether to legalize the practice. For example, should states also be licensed to invoke self-help against each other, or against the federal government? Can federal acts of self-help preempt state law? More generally, what meta-principles should guide the analysis when our dual commitments to federalism and separation of powers collide? This Article takes a first pass at these and related questions. But just asking them advances the idea of constitutional self-help to new ground. Whatever political, legal, and academic battles over constitutional self-help lie ahead, they will need to be fought on the field of “self-help structuralism.”
More broadly, this Article contributes to a larger project of cross-dimensional structuralism. Creative solutions to problems in public governance along one dimension (whether federalism or separation of powers) can have structural spillovers into the other. When separation of powers and federalism overlap and intersect — and, increasingly they do — a cross-dimensional approach of the type modeled here can be analytically necessary. Innovations that may look good in isolation can take on new hue when assayed in full structural context.
(Via Larry Solum at Legal Theory Blog).
Posted at 6:00 AM