Regulating entrenchment ignores functionally entrenched power with no reason to assume optimality.

Evidence

We have sought to show, however, that this analysis is, at the very least, incomplete. Some types of formal entrenchment are easier to identify and quarantine than others. And the same might be true of some discrete types of functional entrenchment, which might turn out to be no less amenable to regulatory spotlighting and excision if courts or scholars ever decided to make the attempt. A more comprehensive assessment of the workability of policing entrenchment would have to get down to cases and institutions, in the manner of ongoing debates over the viability of policing partisan gerrymandering and other entrenchment devices in election law. Such an assessment would also have to reckon with the realistic scope of the substitution and doubledistortion problem: in contexts where barriers to formal entrenchment create hydraulic pressure to substitute more socially harmful strategies of functional entrenchment, the regulatory calculus will be different. Further, the extent to which entrenchment might be self-correcting through ordinary political processes should also bear upon the need for judicial and other forms of legal regulation. In the absence of a more comprehensive assessment along all of these lines—and, indeed, in the absence of any prior recognition by courts and scholars of functional entrenchment as a potential problem—there is little reason for confidence that the prevailing approach of public law toward entrenchment is in any way optimal. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 442

Categorization

• XREF: Connects to path-dependence and institutional-persistence literature in the reader’s knowledge base; the ‘hydraulic pressure to substitute’ point echoes substitutability arguments in Milgrom’s private-order institutions work. — connects to: Formal and functional entrenchment do not differ in harm or benefit; Scholarship fails to see functional entrenchment as equal in democratic stakes to formal entrenchment — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 26; Functional entrenchment is hard to police because policy and entrenchment motives overlap inextricably — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 427
• QUESTION: The claim that courts and scholars have never recognized functional entrenchment as a problem is provocative — is it empirically true, or does some regulatory literature already police functional entrenchment through other labels?

Broader Connections

• Scholarship fails to see functional entrenchment as equal in democratic stakes to formal entrenchment #corroborates (0.95) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 26
• Formal and functional entrenchment do not differ in harm or benefit #qualifies (0.85)
• Functional entrenchment is hard to police because policy and entrenchment motives overlap inextricably #expands (0.85) — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 427