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Response or Comment


Mistretta and Metaphor, 66 Southern California Law Review 607 (1992)


Mark Tushnet brings the art of metaphor to his analysis of separation of powers doctrines. His view, briefly stated, is that judges use what he calls a "functional" analysis when they want to uphold a statute on separation of powers grounds, and a "formalist" analysis when they want to strike down a statute. According to Professor Tushnet, functionalists analyze a statute's actual effects; they examine whether a statute employs sensible methods, whether the statutory organization promotes the general welfare, and whether the statutory scheme substantially alters the balance of power among the branches. Formalists, on the other hand, are more abstract. They first formulate a definition of a statute's tasks, then ask whether those tasks fit into legislative, executive, or adjudicatory categories. Depending upon how the statute's tasks are characterized, formalists may then determine whether Congress has illegally granted powers to one of the branches not authorized to so act.

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