Envy and Jealousy: A Study of Separation of Powers and Judicial Review

Abstract:     
This article attacks the puzzling problem of federal judicial review from a perspective never earlier explored: through the lens of civilization?s understanding of the emotions of jealousy and envy. Drawing from sources in philosophy, psychology, and other social sciences, the article brings together separate trends reflected in positive law, the legal academy, and intellectual thought outside the law. For its raw material, the article focuses on the recently aggressive decisions of the United States Supreme Court interpreting federalism and separation of powers. By focusing on interdisciplinary understanding of jealousy and envy, the article uncovers new insights into these cases. As an organizing principle, Professor Little positioned her analysis within current debates about the appropriate role of federal courts and constitutional adjudication. In particular, Professor Little uses learning from jealousy and envy literature to navigate the following questions currently seizing the attentions of federal jurisdiction and constitutional law scholars: Can we justify supreme judicial review? Is there an optimum scope and subject matter for judicial review? Is functionalism or formalism the best jurisprudential approach for federal courts wrestling with questions of constitutional governance? While not resolving each of these questions definitively, the article engages with contemporary scholarship and contributes fresh insights in evaluating the merits of opposing positions.

Number of Pages in PDF File: 76

Accepted Paper Series