Document Type
Article
Publication Title
Albany Law Review
Abstract
During the last half of the twentieth century, the New Jersey Supreme Court built an impressive reputation for its “intellectually rigorous and forcefully progressive” interpretations of state constitutional law. The court’s status as a jurisprudential entrepreneur rests, in part, on decisions that involve social and economic life—most notably, its enforcement of the positive right to an adequate education. However, the court’s commitment to material well-being has not stopped at the border of state action. In contrast to federal doctrine, the New Jersey Supreme Court has shown a willingness to reconfigure contract and property rights in light of public policies that emanate from state constitutional norms. These cases, involving such issues as whether private property owners can bar leafleting, protect rights that typically are not enforceable against non-government actors and so usually are trumped by common law entitlements. In this Essay, I draw a connection among the New Jersey Supreme Court’s treatment of social and economic rights, its departure from federal state action doctrine, and its reconfiguration of common law entitlements as a special feature of its state constitutional practice.
First Page
553
Volume
69
Publication Date
2006
Recommended Citation
Hershkoff, Helen, "The New Jersey Constitution: Positive Rights, Common Law Entitlements, and State Action" (2006). Faculty Articles. 568.
https://gretchen.law.nyu.edu/fac-articles/568
