Essay by Keith Werhan
This Essay proposes a new model for deciding separation-of-powers cases. The modern jurisprudence on the separation of powers has become muddled because of the seemingly intractable conflict between those who argue for a formalistic doctrine and those who prefer a functional approach. The author argues that this conflict has remained inconclusive because while each methodology has its appeal, neither is fully satisfactory. The author proposes a methodology for separation-of-powers disputes that integrates the formal and functional methods in such a way that draws on the strength of each approach while minimizing their respective weaknesses. The author claims that his model would “normalize” the separation of powers by providing a coherence to the Supreme Court's decisions that most observers have found lacking. It would further normalize the jurisprudence by offering a normative core for separation-of-powers analysis and by aligning that methodology with the Court's approaches to other constitutional problems.
About the Author
Keith Werhan. Vice Dean and Professor of Law, Tulane Law School.
Citation
70 Tul. L. Rev. 2681 (1996)