The Edward S. Corwin prize is awarded annually for the best dissertation in the field of public law.
Jud Mathews of Yale University offers a theoretically rich and empirically engaging answer to the question of constitutional doctrinal dispersion. While most studies focus on the degree to which constitutions constrain governmental actors or how lower courts and other actors respond to high court decisions, Mathews focuses on how constitutional rights claims may influence disputes between non-governmental actors. This “horizontal” legal dispersion occurs when courts take principles grounded in constitutional rights and apply them to relationships between private actors. Mathews offers a novel theory of when such horizontal rights expansion may occur, arguing that courts apply such arguments when there is a “normative gap” in the protection of individual rights in these private interactions that can be potentially filled through the application of constitutional rights. However, Mathews further argues that this gap is necessary but not sufficient: since courts and judges are political actors, expansion is also predicated on the fulfillment of judicial interests, whether ideological, institutional or something else entirely. He also posits that the degree of expansion is a function of doctrine and constitutional scope, thus recognizing the structural and political constraints levied on courts. Mathews then empirically examines this phenomenon through careful and nuanced case studies of the United States, Germany and Canada.
The breadth, creativity and importance of Mathews’s study places it at the top of this year’s nominees. Mathews admirably utilizes insights from Public Law scholars across the spectrum and offers a theory which takes into account the political, historical, doctrinal and institutional aspects of judicial decision-making. By adopting a historical/developmental account, Mathews’s analysis differs from previous comparative studies, moving us beyond a simple legal analysis of doctrinal development. His work also applies social scientific analysis to what is many times a purely normative discussion, thus providing an empirical entry to the debate over the judicialization and politicization of the judiciary. Ultimately, he provides an argument for how high courts’ application of horizontal rights impacts the wider constitutional discourse in all three countries and the potential effects when courts do – and do not – engage in such rights analysis expansion.
Special thanks to our committee Amy Steigerwalt (Chair), Georgia State University; Anthony Lang, University of St. Andrews; Gretchen Helmke, University of Rochester