Many thanks to Dan and the rest of the Prawfs community for inviting me to join the conversation once more.  Lately, I’ve been thinking about constitutional borrowing, which is the practice of lifting legal frameworks, standards, mechanisms, and the like from one area of constitutional law for use in another, seemingly irrelevant constitutional domain.  Robert Tsai and I have written a piece on the topic, which is forthcoming in the Michigan Law Review and available on SSRN.  Here is the 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 surprisingly 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 cross-pollination, and identifies some of th