The Revolution that Wasn't

Elizabeth Magill
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Elizabeth Magill: University of Virginia School of Law

No uvalwps-1006, University of Virginia John M. Olin Program for Law & Economics Working Paper Series from University of Virginia School of Law

Abstract: The Revolution that Wasn't: A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. No similar evolution occurred in separation of powers doctrines. Commentators do not perceive important shifts in the doctrine. Nor should they the reasoning and results in the Rehnquist Court cases are of a piece with what came before. Lack of "revolution" was not for lack of opportunity. And, from the perspective that the Supreme Court has invoked in explaining many of its federalism cases, there is muchvery much, in factthat is not right about the structure of the federal government and the constitutional rules that permit that structure. Using the federalism decisions as a point of comparison, this paper asks why there has been no "revolution" (using the term loosely) in separation of powers jurisprudence during the Rehnquist Court. The paper argues that internal and external factors that drive separation of powers jurisprudence diverge from the factors that drive federalism jurisprudence. The paper focuses on four factors: judicial incentives; the positive law that the Court is applying; the external factors that influence doctrinal developments; and the likely results of shifts in doctrine.

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