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A principal legacy of the Rehnquist Court is its revitalization of doctrines associated with federalism. That jurisprudence has many critics and many defenders. They disagree about how to describe what has happened, the importance of what has happened, and the wisdom of what has happened. But they all agree that something has happened. There has been genuine innovation in this area of constitutional law.

Not so with separation of powers doctrine. 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" (using the term loosely) was not for lack of opportunity. The Supreme Court had many opportunities to revise its doctrines. And, from the perspective that the Court has invoked in explaining many of its federalism cases, there is much--very much, in fact--that is not right about the structure of the federal government and the constitutional rules that permit that structure.

This paper asks why there has been no "revolution" in separation of powers jurisprudence during the Rehnquist Court. Many would expect doctrinal developments in federalism and separation of powers to track one another. Investigating why they have not done so reveals, in fact, that the internal and external factors that influence the developments in the two areas are quite different.


Jurisdiction, Separation of Powers, Checks and Balances, Religion and the Law

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Northwestern University Law Review

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99 Nw. U. L. Rev. 47 (2004)