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Separation Of Powers And The Middle Way, Jack M. Beermann
Separation Of Powers And The Middle Way, Jack M. Beermann
Shorter Faculty Works
Composer Arnold Schoenberg famously once quipped that “the middle way is the one that surely does not lead to Rome.” The idea behind this thought, I gather, is that intellectual compromise does not lead to the truth. John Manning’s recently published article, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1940 (2011), proves Schoenberg’s principle wrong, at least with regard to separation of powers. In this article, Manning, the Bruce Bromley Professor of Law at Harvard Law School, persuasively demonstrates that neither extreme in current debates about separation of powers is correct, and that a true understanding …
A Separation Of Powers Defense Of Federal Rulemaking Power, Michael Blasie
A Separation Of Powers Defense Of Federal Rulemaking Power, Michael Blasie
Faculty Scholarly Works
Judicial rulemaking—the methods by which federal courts create federal procedural rules—represents a paradigmatic clash between the functionalist and formalist theories of the separation of powers. There exist compelling practical reasons to invest such power in the judiciary, yet the Constitution’s text does not explicitly confer such power on any branch. This Article comprehensively examines the separation of powers issues raised by the current federal rulemaking process under the formalist theory of the separation of powers in light of modern precedent. Part I details the current procedure for creating the federal rules, summarizes the relevant scholarship, and examines the few Supreme …