Bulletin n. 2/2016
December 2016
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
  • Huq Aziz Z., Michaels Jon D.
    The Cycles of Separation-of-Powers Jurisprudence
    in Yale Law Journal (The) , vol. 126 - n. 2 ,  2016
    The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seemingly erratic doctrinal shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. We break from previous scholarship critical of the Court’s zigzagging, and instead consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We further develop a new theoretical account of the separation of powers where doctrinal cycling might be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a singular focus on the interplay of the three great branches would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this “thick political surround” when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the separation-of-powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, for determining whether courts possess the necessary institutional resources to promote separation-of-powers values.
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