University of California, Berkeley School of Law
For much of this nation's history, the governance of American territories, such as the island of Guam, was one of the most significant and oft-litigated problems of American constitutional law. In modern times, however, issues of territorial governance have been reduced to the status of constitutional arcana. Professor Lawson maintains that this frequently neglected problem of territorial governance is an ideal context in which to conduct the resurgent modern debate concerning separation of powers theory. Accordingly, Professor Lawson undertakes a formalist analysis of the principal institutions of American territorial governance, finding all of them incompatible with a formalist understanding of separation of powers. He then critically discusses the constitutional histor of these territorial institutions-a history that represents the Supreme Court's most consistent, and perhaps earliest, rejection of formalist methodology. Finally, he argues that the political consequences of applying formalism to territorial administration need not be as profound as a straightforward analysis might suggest.
Gary S. Lawson,
Territorial Governments and the Limits of Formalism
California Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2487