Law Commons^™

The Real Separation In Separation Of Powers Law, Elizabeth Magill

All Faculty Scholarship

This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …