Separation of Parties, Not Powers

Levinson, Daryl J., Pildes, Richard H., Harvard Law Review

INTRODUCTION

I. FROM BRANCHES TO PARTIES
  A. Madison and the Mechanisms of Political Competition
  B. Presidential, Parliamentary, and Party Government
  C. Conclusion: Separation of Parties

II. PARTY UNIFICATION AND DIVISION OF GOVERNMENT

  A. The Past, Present, and Future of Unified and Divided Government
     1. Unified and Divided Governments
     2. Fragmented and Cohesive Parties

  B. The Functional Differences Parties Make
     1. Legislative Efficacy
     2. Executive Accountability

III.  REENVISIONING, AND REFORMING, THE SEPARATION OF POWERS

  A. Separation-of-Powers Law
     1. Rights and Executive Powers During War and Crisis
     2. The Administrative State
     3. Judicial Review

  B. Democratic Institutional Design
     1. Minority Opposition Rights
     2. Bureaucracy and the Checking Function

  C. Political Parties and the Law of Democracy
     1. Safe Districting
     2. Primary Election Structures
     3. Internal Legislative Rules
     4. Encouraging Divided Government

CONCLUSION

American political institutions were founded upon the Madisonian assumption of vigorous, self-sustaining political competition between the legislative and executive branches. Congress and the President would check and balance each other; officeholders would defend the distinct interests of their different institutions; ambition would counteract ambition. That is not how American democracy turned out. Instead, political competition and cooperation along relatively stable lines of policy and ideological disagreement quickly came to be channeled not through the branches of government, but rather through an institution the Framers could imagine only dimly but nonetheless despised: political parties. Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Yet few of the Framers' ideas continue to be taken as literally or sanctified as deeply by courts and constitutional scholars as the passages about interbranch relations in Madison's Federalist 51. This Article reenvisions the law and theory of separation of powers by viewing it through the lens of party competition. In particular, it points out that during periods--like the present--of cohesive and polarized political parties, the degree and kind of competition between the legislative and executive branches will vary significantly and may all but disappear, depending on whether party control of the House, Senate, and Presidency is divided or unified. The practical distinction between party-divided and party-unified government thus rivals, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.

INTRODUCTION

Describing a set of "wholly new discoveries" in the "science of politics" that might enable democratic self-government to succeed in the American republic, Alexander Hamilton listed first the "balances and checks" that distinctively characterize the American system of separation of powers. (1) In Madison's ingenious scheme of separated powers, "the interior structure of the government" would be "so contriv[ed]" "as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." (2) By institutionalizing a differentiation between executive and legislative powers (as well as by dividing the legislature into two chambers), the separation of powers would harness political competition into a system of government that would effectively organize, check, balance, and diffuse power. What is more, the system would be self-enforcing, relying on interbranch competition to police institutional boundaries and prevent tyrannical collusion. In the Framers' Newtonian vision, the separation of powers was to be "a machine that would go of itself." (3)

To this day, the idea of self-sustaining political competition built into the structure of government is frequently portrayed as the unique genius of the U.S. Constitution, the very basis for the success of American democracy. (4) Yet the truth is closer to the opposite. The success of American democracy overwhelmed the Madisonian conception of separation of powers almost from the outset, preempting the political dynamics that were supposed to provide each branch with a "will of its own" that would propel departmental "[a]mbition ... to counteract ambition." (5) The Framers had not anticipated the nature of the democratic competition that would emerge in government and in the electorate. Political competition and cooperation along relatively stable lines of policy and ideological disagreement quickly came to be channeled not through the branches of government, but rather through an institution the Framers could imagine only dimly but nevertheless despised: political parties. As competition between the legislative and executive branches was displaced by competition between two major parties, the machine that was supposed to go of itself stopped running.

Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Nevertheless, few of the Framers' ideas continue to be taken as literally or sanctified as deeply by courts and constitutional scholars as the passages about interbranch relations in Madison's Federalist 51. To this day, Madison's account of rivalrous, self-interested branches is embraced as an accurate depiction of political reality and a firm foundation for the constitutional law of separation of powers. In the Madisonian simulacrum of democratic politics embraced by constitutional doctrine and theory, the branches of government are personified as political actors with interests and wills of their own, entirely disconnected from the interests and wills of the officials who populate them or the citizens who elect those officials. Acting on these interests, the branches purportedly are locked in a perpetual struggle to aggrandize their own power and encroach upon their rivals. The kinds of partisan political competition that structure real-world democracy and dominate political discourse, however, are almost entirely missing from this picture. (6)

As this Article describes, the invisibility of political parties has left constitutional discourse about separation of powers with no conceptual resources to understand basic features of the American political system. It has also generated judicial decisions and theoretical rationalizations that float entirely free of any functional justification grounded in the actual workings of separation of powers. Ignoring the reality of parties and fixating on the paper partitions between the branches, the law and theory of separation of powers is a perfect fit for the government the Framers designed. Unfortunately, they miss much of the government we actually have.

Ironically, one of the few places in constitutional law where parties do appear is in the most celebrated judicial opinion of the separation-of-powers canon, Justice Jackson's concurrence in the Youngstown case. (7) After laying out his now-familiar tripartite categorization of executive action, Justice Jackson went on to emphasize that modern separation-of-powers analysis must understand the powers and motivations of the branches of government in light of their relation to political parties:

   [The] rise of the party system has made a significant
   extraconstitutional supplement to real executive power. No appraisal
   of his necessities is realistic which overlooks that he heads a
   political system as well as a legal system. Party loyalties and
   interests, sometimes more binding than law, extend his effective
   control into branches of government other than his own and he often
   may win, as a political leader, what he cannot command under the
   Constitution. (8)

Justice Jackson astutely recognized that the separation of powers no longer works as originally envisioned because interbranch dynamics have changed with the rise of political parties, which in Youngstown had diminished the incentives of Congress to monitor and check the President. Yet this part of Justice Jackson's opinion has been ignored entirely. Even after decades of dissecting Justice Jackson's Youngstown opinion, neither the Supreme Court nor any other federal court has ever quoted this critical insight, nor has it received much notice by legal scholars. (9) Justice Jackson's sophisticated realism about the workings of government is widely admired by constitutional lawyers, but his most penetrating realist insight--recognizing party competition as a central mechanism driving the institutional behavior that separation-of-powers law aims to regulate--has been missed.

This Article seeks to recover and build upon Justice Jackson's insight, reenvisioning the law and theory of separation of powers by viewing it through the lens of party competition. We emphasize that the degree and kind of competition between the legislative and executive branches vary significantly, and may all but disappear, depending on whether the House, Senate, and presidency are divided or unified by political party. The practical distinction between party-divided and party-unified government rivals in significance, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics. Recognizing that these dynamics shift from competitive when government is divided to cooperative when it is unified calls into question many of the foundational assumptions of separation-of-powers law and theory. It also allows us to see numerous aspects of legal doctrine, constitutional structure, comparative constitutionalism, and institutional design in a new and more realistic light.

The Article proceeds as follows. Part I lays out the conceptual case for switching the focus of separation of powers from branches to parties, arguing that political competition in government often tracks party lines more than branch ones. Recognizing that party competition can either create or dissolve interbranch competition, depending on whether government is unified or divided by party, suggests that the United States has not one system of separation of powers but (at least) two. Part II looks more closely at these dual--party-divided and party-unified--models of separation of powers and traces the history of divided and unified government in this country, including the historical variation in the coherence and polarization of the two major parties, which has significantly affected how the models work in practice. In particular, Part II emphasizes that the emergence of exceptionally strong and polarized parties in recent decades has exaggerated the functional differences between divided and unified government, with important implications for the normative aspirations of separation of powers.

Part III turns to implications for both constitutional law and democratic institutional design. With respect to constitutional law, Part III shows where conventional separation-of-powers analysis--based on the Madisonian model of inherently competitive branches checking and balancing one another--goes astray. The greatest threat to constitutional law's conventional understanding of, and normative goals for, separation of powers comes when government is unified and interbranch political dynamics shift from competitive to cooperative. Part III then takes up the challenge of imagining how law and political institutions might be reformed to restore the checks and balances that party unification undermines. In part, it does so by pursuing a strategy of institutional design, borrowing the idea of "opposition rights" from European parliamentary democracies to suggest avenues for recreating party competition within government institutions and revisiting the Progressive vision of a depoliticized bureaucracy as the "fourth branch" of government. Part III also explores the possibility of a more direct approach to the problem of strongly unified government: fragmenting, or moderating, the political parties themselves. In doing so, it brings us full circle, back to the Article's animating recognition that the law and politics of separation of powers are continuous with, and inseparable from, the law and politics of democracy.

I. FROM BRANCHES TO PARTIES

A. Madison and the Mechanisms of Political Competition

According to the political theory of the Framers, "the great problem to be solved" was to design governance institutions that would afford "practical security" against the excessive concentration of political power. (10) Constitutional provisions specifying limited domains of legitimate authority were of minimal utility, for, as Madison explained, "a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands." (11) The solution to this great problem was, instead, to link the power-seeking motives of public officials to the interests of their branches. By giving "those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others," the Framers hoped to create a system in which competition for power among the branches would constrain each safely within its bounds. (12) With multiple government departments pitted against each other in a competition for power, an invisible-hand dynamic might prevail in which "[a]mbition [would] be made to counteract ambition." (13)

Madison's vision of competitive branches balancing and checking one another has dominated constitutional thought about the separation of powers through the present. Yet it has never been clear exactly how the Madisonian machine was supposed to operate. (14) Particularly puzzling is Madison's personification of political institutions, his hope that each branch might come to possess "a will of its own." (15) If branches of government pursued their own interests, and if these interests were similar to the power-mongering interests that the Framers attributed to individual political actors, then branches might indeed compete with one another for power. But of course, government institutions do not have wills or interests of their own; their behavior is a product of the wills or interests that motivate the individual officials who compose them. Madison saw the need for a linkage between "the interest of the man" and "the constitutional rights of the place," (16) but he never provided a mechanism by which the interests of actual public officials would be channeled into maintaining the proper role for their respective branches. (17)

From the modern perspective of consolidated democracy, it is hard to see how such a mechanism would arise. Even assuming, with the founding generation, that officeholders are driven by a "lust for self-aggrandizement," (18) the structure of democratic politics effectively channels those ambitions into a different set of activities that has nothing to do with aggrandizing their departments or defending them against encroachments. Individual politicians gain and exercise power by winning competitive elections and effectuating political or ideological goals. Neither of these objectives correlates in any obvious way with the interests or power of branches of government as such. Madison's will-based theory of separation of powers would seem to require government officials who care more about the intrinsic interests of their departments than their personal interests or the interests of the citizens they represent. Democratic politics is unlikely to generate such officials. (19)

The founding generation's assumptions about the workings of representative democracy may help account for Madison's optimism. First, elections were not then conceived as the competitive contests they soon became. Instead, they were understood and practiced largely as matters of acclamation, focusing on personal qualities more than issues and interests and primarily serving to ratify existing social and political hierarchies. (20) George Washington's assumption of the presidency is a paradigmatic example. Second, to the extent political issues were discussed, it was in the civic republican vocabulary of disinterested concern for the common good, shunning explicit appeals to interest. (21) With large election districts for the House and indirect election of the Senate and President providing further insulation from the self-interested demands of constituents, it was possible to envision officeholders who would "refine and enlarge the public views" and whose "wisdom [might] best discern the true interest of their country." (22) In this kind of political, or apolitical, world, it was possible to imagine that, once elected, officeholders would not be tempted by constituent pressures and competing ideological or policy goals to sacrifice the constitutionally assigned duties and powers of their branches--simply because constituent pressures and divergent interests were kept to a minimum.

Less optimistically, the founding generation also had good reason to doubt whether representative democracy would work at all and, consequently, good reason to fear that government officials would pursue interests entirely disconnected not just from those of their nominal constituents, but from the public good as well. Madison's scheme for pitting competing branches against one another may have been meant only as a fail-safe, in case Antifederalist fears of radical democratic failure came to pass. If one branch fell under the control of a would-be monarch or tyrannical cabal, the other branches might provide a check by using their constitutional powers to block oppressive measures or, as the founding generation vividly recalled from the English Civil War, by leading an opposing army to fight for control of the state. (23) In the worst-case scenario, better to be ruled by several warring tyrants than a single omnipotent one. For the Federalist Framers, however, this kind of figurative and literal interbranch warfare was meant only as an "auxiliary precaution[]." (24) The "primary control on the government" would be its "dependence on the people," (25) which would link the political self-interest of legislators to the interests of the voters who determined their professional fates. (26) If representative democracy worked as the Framers hoped, in other words, competition for power among the branches would be replaced by competition for power among politicians and groups of constituents.

In fact, this is just what happened: Madison's design was eclipsed almost from the outset by the emergence of robust democratic political competition. Rather than tying their ambitions to the constitutional duties or power base of their departments, officials responded to the material incentives of democratic politics in ways that now seem natural and inevitable: by forming incipient organizations that took sides on contested policy and ideological issues and by competing to marshal support for their agendas. These efforts led inexorably, though haltingly, to the organization of enduring parties that would facilitate alliances among groups of like-minded elected officials and politically mobilized citizens on a national scale.

The idea of political parties, representing institutionalized divisions of interest, was famously anathema to the Framers, as it had long been in Western political thought. (27) Equating parties with nefarious "factions," the Framers had attempted to design a "Constitution Against Parties." (28) But the futility of this effort quickly became apparent. By the end of the first Congress, it had become clear that political competition organized around issues and programs had the potential to divide coalitions of officeholders and cut through the constitutional boundaries between the branches. The earliest efforts toward alliance formation were initiated by Treasury Secretary Alexander Hamilton, who in 1790 began to recruit members of Congress to forge a coalition in favor of his economic development program. His leading congressional opponent, James Madison, joined with Thomas Jefferson to organize opposition. As the political battle in Congress intensified, both sides recognized the need to cultivate public support. By the 1796 elections, Federalists and Republicans had coalesced into competing groupings, with party leaders controlling nominations and, at least in some states, rudimentary party machinery organizing campaigns focused more on issues and platforms than on the local stature of the candidates. (29) When Congress convened in 1797, its members were clearly identified as Federalist or Republican and regularly voted along those lines. The precursors of the modern political parties had taken root, planted by the very Framers who had authored a Constitution against them. (30)

To be sure, the early organizations, caucuses, and proto-parties were organized with regret and regarded as temporary expediencies that would fade when the urgent need to defeat a treasonous enemy had passed (31)--as they did, to some extent, after the collapse of the Federalist Party inaugurated the "Era of Good Feelings." (32) The Jacksonian period, however, brought lasting recognition and acceptance of a "party system" of democratic politics: an ongoing competition, as Professor Richard Hofstadter later defined it, between stable, organized parties, alternating power and control within shared acceptance of a constitutional framework. (33) Acceptance of this idea has rightly been called a "revolution in political structure [that] lies at the foundation of modernity." (34)

At the very least, the rise of partisan politics worked a revolution in the American system of separation of powers, radically realigning the incentives of politicians and officeholders. As an initial example, consider the role of parties in transforming the presidency into a genuinely independent counterweight to Congress. During the country's first forty years or so, a chasm emerged between the predicted and actual effects of the constitutional design on the President's capacity to stand apart from Congress. The Framers had specifically rejected congressional appointment of the President on the ground that making the President reliant on congressional support would deny him the requisite independence. (35) Yet after Washington's presidency, party caucuses in Congress quickly became the mechanism for identifying and selecting credible presidential candidates. The rise of legislative parties as gatekeepers for the presidency, together with the expectation that elections would often be decided in the House of Representatives (as they were in two of the four open-seat presidential elections from 1800 to 1824), meant that Congress played a major role in selecting the President. (36) As a result, the American government effectively operated for much of its first forty years with a congressionally dominated fusion of legislative and executive powers. (37) So much for Madison's prediction that separated powers would create checks and balances by joining "the interest of the man" with "the constitutional rights of the place." (38) The political interests of the man who held the presidency, it turned out, had little to do with furthering some abstract conception of the presidency's proper role, but were instead rooted in the necessity of winning and keeping office. Presidents maximized their political prospects not by creating an independent "will" for the executive branch or competing with Congress for power, but instead by acquiescing in congressionally dominated government.

Not until the presidency of Andrew Jackson did American government begin to resemble in practice the Madisonian system of separation of powers that existed on paper. Jackson was the first President to circumvent Congress by appealing directly to the people, claiming that his office embodied the American people as a whole. His revolutionary use of the veto backed up this claim. (39) As a leading historian of the presidency puts it, for the first time the presidency "was thrust forward as one of three equal departments of government, and to each and every of its powers was imparted new scope, new vitality." (40)

The inauguration of the independent presidency under Jackson was made possible by two institutional changes, both emerging from the invention of political parties. First, Martin Van Buren's creation of the mass-scale political party generated pressure for popular control over presidential nominations, leading to the replacement of the congressional caucus system by national nominating conventions as of 1832. (41) Second, the Democratic Party's novel practice of running presidential electors pledged in advance to vote for particular candidates undermined the electoral college by turning it into a mere tabulating device, one likely to yield a majority winner; this all but eliminated the role of the House of Representatives in resolving presidential elections. (42) Taken together, these two institutional changes wrested control of the presidency away from Congress by forging an independent, popular electoral base for the President. (43)

Thus, it took the mass-scale Democratic Party of Van Buren and Jackson to create the possibility of Madisonian competition between Congress and the President that the original constitutional design had promised but failed to deliver. (44) For all of the Framers' aversion to parties, credit for the belated birth of genuinely separated powers must go to the mass political party--the embodiment of the factionalized politics the Framers most loathed. One failure of constitutional design was corrected, ironically, by another.

The correction, however, was neither permanent nor complete. Just as parties can create the conditions necessary for interbranch competition to emerge, they can also submerge competition by effectively reuniting the branches. As we elaborate below, if government officials are motivated primarily by policy and partisan goals, then single-party control of multiple branches of government will tend to create cross-branch cooperation among like-minded officeholders. (45) Once again, parties can--and often do--change the relationship between Congress and the President from competitive to cooperative.

For present purposes, however, it is enough to see that from the outset of government under the Constitution, practical politics undermined the Madisonian vision of rivalrous branches pitted against one another in a competition for power. The emergence of a robust system of democratic politics tied the power and political fortunes of government officials to issues and elections. This, in turn, created a set of incentives that rendered these officials largely indifferent to the powers and interests of the branches per se. (46) In Madison's terms, "the interests of the man" have become quite disconnected from the interests of "the place."

Instead, the electoral and policy interests of politicians have become intimately connected to political parties. Since the early conflicts between Federalists and Republicans, politicians have affiliated themselves with the party whose platform comes closest to their own policy preferences, and parties, in turn, have exerted influence over members' policy goals and their ability to achieve them in office. The result has been a strong correlation between party affiliation and political behavior. Even the most casual observer of Washington politics understands that congressional opposition to a President's initiatives and nominees will come predominantly, if not entirely, from members of the opposite party.

To observe that the political interests of elected officials generally correlate more strongly with party than with branch is not to assert that political interests perfectly track party affiliation. They obviously do not. For well-understood structural reasons, American parties have never achieved the near-perfect unity of political parties in European parliamentary systems. In the American system, policy agreement and disagreement on some issues has been, and continues to be, structured along lines that cut across party affiliations. On certain aspects of trade and environmental policy, for example, the relevant cleavages may correspond more closely to geography and interest-group support than to party. (47) And sometimes the lines of policy disagreement actually do correspond to the branches, reflecting the divergent preferences of the different temporal and geographical majorities that the House, Senate, and President represent (as opposed to the institutional interests of the branches as such). Conventional wisdom has it, for example, that the President tends to focus more on national-scale problems and is generally inclined to resist the persistent efforts of Congress to dole out local pork. (48) Such institutionally correlated divergences of political interest will sometimes create political battles between the branches--not because anyone has any stake in the power of the branches qua branches, but simply because, on some issues, branch affiliation will correlate with policy preferences (and party affiliation will not). When it comes to highway bills, party labels may fall by the wayside.

Nevertheless, the bottom line remains that in the broad run of cases--which is, after all, the relevant perspective for constitutional law--party is likely to be the single best predictor of political agreement and disagreement. (49) It is impossible to grasp how the American system of government works in practice without taking account of how partisan political competition has reshaped the constitutional structure of government in ways the Framers would find unrecognizable. Yet the constitutional law and theory of separation of powers has proceeded, for the most part, as if parties did not exist and the branches behaved in just the way Madison imagined. (50)

B. Presidential, Parliamentary, and Party Government

In contrast to courts and constitutional scholars, political scientists have long appreciated political parties' leading role in enforcing the separation of powers, though from the opposite normative perspective. Their focus on parties emerges from a traditional line of political thought juxtaposing the American "presidential" system of separation of powers with the classic British system of parliamentary government. In contrast to the Madisonian model, in which democratic legitimacy and lawmaking authority are formally divided between the independently elected President and Congress, the Westminster executive is formed by the legislative majority and essentially wields plenary control over governance. Power in the Westminster system is unified, not separated.

For admirers of the British system, the Madisonian design was critically flawed in its inception. The parliamentarian critique of the American separation of powers dates back at least to the early Woodrow Wilson, who, writing in the late nineteenth century, saw the Framers' decision to divide powers between Congress and the Executive as a "grievous mistake." (51) Wilson argued that Madisonian government was dramatically ineffective and vulnerable to paralysis and stalemate because significant policymaking could not be accomplished without somehow inducing cooperation between the inherently competitive political branches. He also argued that, because voters had no single government institution on which to focus political credit or blame, the constitutional separation of powers sacrificed democratic accountability. Wilson judged the parliamentary system's unification of authority and responsibility in the prime minister and his cabinet to be clearly superior along both of these dimensions.

Wilson's parliamentarian critique of presidential government became the conventional wisdom of the field he founded and has been reiterated and elaborated by political scientists through the present. (52) But political scientists have also appreciated the ironic possibility that political parties could redeem American government from its inherently flawed constitutional structure. As the standard argument goes, "the institutions that the framers had so deliberately separated had to be brought together in some degree of unity for the government to function--and the instrument for that purpose was the political party." (53) The hope is that, by uniting the interests of government officials across branch lines, parties might defeat the Framers' design and, in practice, fuse the formally separated legislature and Executive into a second-best approximation of Westminster. This view, which has both descriptive and normative components, has been known as the doctrine of "(responsible) party government." (54)

The party government view is premised on the widespread belief among political scientists that party lines predict political behavior better than branch ones. If instead the political interests of members of Congress and the President corresponded predominantly to branch membership, then regardless of party we would expect to see competition rather than cooperation between the branches--just as Madison envisioned, Wilson once feared, and courts and constitutional theorists continue to take for granted. This would make parties at best peripheral features of the political system-which, again, is exactly how they have generally been regarded by constitutional scholars. (55) If parties are to link "the executive and legislative branches in a bond of common interest," (56) then party identification must dominate branch identification. Generations of political scientists have proceeded from this well-grounded assumption, putting them precisely at odds with generations of constitutional lawyers.

But another necessary condition for successful party government, of course, is that the same party control both the legislative and executive branches. When control is divided between parties, we should expect party competition to be channeled through the branches, resulting in interbranch political competition resembling the Madisonian dynamic of rivalrous branches (perhaps even fueling more extreme competition than the Framers envisioned). True, the underlying mechanism would be entirely different: branches would continue to lack wills of their own, and politicians would continue to lack any interest in the power of branches qua branches. The branches would simply serve a politically contingent role as vehicles for party competition.

Writing in the midst of a quarter century of mostly divided government, the early Wilson had witnessed exactly that. His mistake was to overgeneralize features of the political system he was observing at that moment, assuming them to be inevitable features of the Madisonian design. (57) Later generations of political scientists, writing against the background norm of unified government that had prevailed for the first half of the twentieth century, replicated Wilson's mistake in the opposite direction. By the 1950s, Wilsonian criticism of the Madisonian design had been displaced by calls for stronger and more programmatic political parties of the European variety. (58) This made perfect sense on the assumption that government would usually be unified: strengthening parties might then be all that stood between Washington and a system of responsible party government that would closely approximate the Westminster ideal. Under conditions of divided party control, however, strong parties …

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Publication information: Article title: Separation of Parties, Not Powers. Contributors: Levinson, Daryl J. - Author, Pildes, Richard H. - Author. Journal title: Harvard Law Review. Volume: 119. Issue: 8 Publication date: June 2006. Page number: 2311+. © 2007 Harvard Law Review Association. COPYRIGHT 2006 Gale Group.

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