This Note, building upon dicta in two recent U.S. Supreme Court First Amendment overbreadth doctrine cases - Massachusetts v. Oakes and Osborne v. Ohio - argues that separation of powers can be seen as a delicate incentive structure which although not insuring this certainty and predictability, helps to promote it.
The Note does not attempt to show that this view of separation of powers is the driving force behind all Supreme Court separation of powers opinions. The Note is mainly interested in offering a coherent rationale for separation of powers doctrine. Nevertheless, the Note briefly discusses the two Supreme Court First Amendment overbreadth cases because they contain some of the elements of the view of separation of powers the Note sets forth, and consequently help flesh out the connection between separation of powers and the rule of law. These cases suggest that at least Justice Scalia and perhaps several other U.S. Supreme Court Justices might hold a view of separation of powers which in part resembles the one advanced in this Note.
Finally, the Note argues that there is a close link between its view of separation of powers and Ronald Dworkin's well known conception of the role of the judge." Although Dworkin has only rarely in his writings adverted to separation of powers, and has never attempted to articulate a broad theory of separation of powers, his rights thesis is remarkably consistent with the view of separation of powers set forth in this Note.
"Separation of Powers and the Rule of Law,"
Akron Law Review: Vol. 24
, Article 1.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol24/iss2/1