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This article begins by asking what constitutional provision is violated by the enforcement of law without a lawmaker. Taking a positivist view—i.e., that law does not exist without a lawmaker—it concludes that the problem of law without a lawmaker collapses into the problem of coercion without law. Coercion without law violates the Due Process Clause in an obvious way: it is deprivation of something “without … law.” The article then explores the existence of this form of substantive due process in American law, arguing that we find it in three somewhat surprising places: Lochner-era substantive due process; modern federalism cases like Morrison, Lopez, and Bond; and Erie itself. Erie’s constitutional source, it concludes, is the Due Process Clause.


Constitutional law, coercion, substantive due process of law, Lochner, federalism, Erie v. Tompkins, federal common law, overbreadth, third-party standing, states’ rights

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William & Mary Law Review

Publication Citation

54 Wm. & Mary L. Rev. 987 (2013)