Separation of Powers in Thought and Practice

The rationale of the separation of powers is often elided with the rationale of checks and balances and with the rationale of the dispersal of power generally in a constitutional system. This Essay, however, focuses resolutely on the functional separation of powers in what M.J.C. Vile called its “pure form.” Reexamining the theories of Locke, Montesquieu, and Madison, this Essay seeks to recover (amidst all their tautologies and evasions) a genuine case in favor of this principle. The Essay argues that the rationale of the separation of powers is closely related to that of the rule of law: it is partly a matter of the distinct integrity of each of the separated institutions—judiciary, legislature, and administration. But above all, it is a matter of articulated governance (as contrasted with com-pressed undifferentiated exercises of power)

Socioeconomic Rights and Theories of Justice

This Article considers the relation between theories of justice - such as John Rawls\u27s theory - and theories of socioeconomic rights. In different ways, these two kinds of theories address much of the same subject matter. But they are quite strikingly different in format and texture. Theories of socioeconomic rights defend particular line-item requirements: a right to this or that good or opportunity, such as housing, health care, education, and social security. Theories of justice tend to involve a more integrated normative account of a society\u27s basic structure, though they differ considerably among themselves in their structure. So how exactly should we think about their relation? The basic claim of this Article is that we should strive to bring these two into closer relation with one another because it is only in the context of a theory of justice that we can properly assess the competition that arises between claims of socioeconomic right and other claims on public and private resources

“The Experience and Good Thinking Foreign Sources May Convey”: Justice Ginsburg and the Use of Foreign Law

This Article is an appreciation of Justice Ruth Bader Ginsburg’s defense of the Supreme Court’s use of foreign law, particularly her arguments about what our courts can learn from the work that foreign courts have done. The Article extends and develops Justice Ginsburg’s account, drawing an analogy between courts learning from one another, and scientists learning from one another in a community of inquiry