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Optimal Specificity in the Law of Separation of Powers: The Numerous Clauses Principle

Responding to John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011)

In this response to Professor John Manning’s Separation of Powers as Ordinary Interpretation, Professor Gary Lawson agrees with Manning’s argument that there is no overarching constitutional principle of “optimal specificity.” Lawson argues, however, that there are other overarching principles that are fairly derivable from the text, such as a principle of “decisional independence.” Moreover, Lawson suggests a bigger potential problem with Manning’s argument: when judges apply functionalist or formalist reasoning to decide cases, they may be engaging in a qualitatively different activity than Manning assumes, and his careful interpretative analysis may therefore be largely beside the point.