Category Archives: pedagogy

I’m delighted to announced that I’ve signed a deal with Aspen to write: “Legislation, Statutory Interpretation, and Election Law: Examples and Explanations.”  This will follow Aspen’s well-received “Examples and Explanations” format, essentially a student-oriented treatise with mini-essay questions and answers after each portion of text. (I’ve written an Examples and Explanations book on Remedies, which is now in its third edition.) It will also be suitable for practitioners as a basic treatise on issues of: Legislation and Representation (including issues related to legislative enactments, filibuster rules, etc.); Statutory Interpretation; Voting Rights and Representation (including redistricting, the Voting Rights Act, political parties); and Campaign Finance Law.

The book will be suitable for use in Legislation, Statutory Interpretation, and Election Law courses as either a student study aid or a supplemental text.  It will be designed to work with all of the major casebooks in these fields.

This is a post for instructors who will be teaching a course on Election Law in the fall.  Dan Tokaji and I will soon begin work on the 2013 supplement to Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials (5th ed. 2012). The edition will be posted free online for use by instructors (and their students) who assign the casebook.

The Supreme Court’s expected decisions in the Shelby County case involving the constitutionality of section 5 of the Voting Rights Act and the argument coming next term in the campaign finance case of McCutcheon v. FEC are among the developments we expect to cover in the 2013 supplement.

If you are an instructor, use the link above to request a free review copy of the casebook.

TaxProf reports (h/t Derek Muller).

You can find it here. And it will be available later on the right side of this blog under “Election Law Resources.”

You’ll be able to watch a webcast of Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance beginning at 9 am Pacific at this link.  This same link will have an archived version of this event.

The University of Toledo College of law will have this interesting symposium on October 19.  Great line up, and sure to be interesting keynote speaker: OH SOS Jon Husted.

Montana Law Review Symposium:

THE MONTANA LAW REVIEW
presents

The Honorable James R. Browning Symposium on

ELECTION LAW
The State of the Republican Form of Government in the States

September 27 & 28, 2012
University Center Ballroom

Thursday, September 27
6:00 – 7:00 p.m. | Keynote Address by
Professor Lawrence Lessig of Harvard Law School

Friday, September 28
8:30 a.m. | Introduction by Professor Anthony Johnstone
8:45 – 10:30 a.m. | The Rules of a Republican Form of Government
10:45 – 12:30 | The Administration of a Republican Form of Government
2:00 – 3:45 p.m. | The Adjudication of a Republican Form of Government
4:00 – 5:45 p.m. | Montana Panel

Panelists
Professor Bill Marshall (UNC) | Professor Richard Pildes (NYU)
Professor Richard Hasen (UC Irvine) | Professor Edward Foley (OSU)
Professor Michael Kang (Emory) | Professor Ciara Torres-Spelliscy (Stetson)
Professor James Lopach (Montana) | Professor Jeff Wiltse (Montana)
Professor Robert Swartout (Carroll) | Allison Hayward (Center for Competitive Politics)
Edwin Bender (Institute on Money in State Politics) | Andy Huff (MT Asst. Attorney General)
Jim Brown (Doney, Crowley, Payne, Bloomquist, P.C.) | Laughlin McDonald (ACLU)
Former Montana Supreme Court Justices Leaphart and Regnier

All events are free and open to the public.
8 FREE General CLE credits. No registration required.

FOR MORE INFORMATION:
(406) 243-2023
montanalawrev@umontana.edu

I’m looking forward to this!

Eventually the link to the webcast and archive will be here.

Here’s information about an interesting conference at the University of Richmond:

*****

The University of Richmond Law Review presents the Allen Chair Symposium

Beyond the Red, Purple, and Blue: Election Law Issues in 2012

Date: Friday, October 5, 2012
Time: 8:30 a.m.-3:30 p.m.
Location: University of Richmond – Ukrop Auditorium at the Robins School of Business and Merhige Moot Courtroom at the School of Law
Cost: No charge to attend
MCLE pending for 5.0 credits (0.0 ethics credits)

Register Now 

Panelists include:

• Jocelyn F. Benson, Associate Professor of Law, Wayne State University Law School
• Joshua A. Douglas, Assistant Professor of Law, University of Kentucky College of Law
• Rebecca Green, Professor of the Practice of Law, Coordinator of the Election Law Program, and Assistant Director of the Center for Legal and Court Technology, William & Mary Law School
• Dale Ho, Assistant Counsel of the Political Participation Group, NAACP Legal Defense and Educational Fund, Inc.
• Steven F. Huefner, Professor of Law, Director of Clinical Programs, Legislation Clinic Director, and Senior Fellow of Election Law, The Ohio State University Michael E. Moritz College of Law
• Jessica A. Levinson, Associate Clinical Professor, Loyola Law School
• Dr. Michael P. McDonald, Associate Professor of Government and Politics, George Mason University
• Michael J. Pitts, Professor of Law and Dean’s Fellow, Indiana University Robert H. McKinney School of Law
• Rob Richie, Executive Director, FairVote

 

Register Now 

 

University of Richmond School of Law
28 Westhampton Way
University of Richmond, Va. 23173

I have just received my copy of the Second Edition of this ABA book.  I wrote the book’s introduction and this blurb: “Drawing on the knowledge of a wide range of lawyers, law professors, and voting specialists from across the ideological spectrum, the second edition of America Votes! provides key information and important perspectives on election law questions which the courts are currently addressing or about to address.”

Here is the table of contents.

My copy of Lowenstein, Hasen, Tokaji just arrived (also available at Amazon). Book description:

The new streamlined and student-friendly Fifth Edition of Election Law: Cases and Materials fully covers developments in election law in the 2012 election season including; extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well.

Election Law in the American Political System, by Jim Gardner and Guy-Uriel Charles.  Jim gives a description of the book here.  I’m looking forward to checking it out.

I am delighted to have just signed off on the 5th edition of Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials as well as a 180-page revamped Teacher’s Manual.  (The manual includes model syllabi for a general election law course, as well as specialized courses in campaign finance, election administration, and voting rights.)

I have posted the final version of the Table of Contents, as well as the final version of the Table of Cases, Table of Authorities, and Index.  These latter tables run 50 pages, but the book’s content itself (mercifully) is now back under 1,000 pages.

The book should ship within 4-5 weeks, well in time for fall classes. It can be preordered now at the link above.

Here’s a brief description of what’s new for the 5th edition: “The new streamlined and student-friendly Fifth Edition of Election Law: Cases and Materials fully covers developments in election law in the 2012 election season including; extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well. For the first time, an electronic version of the casebook will be available as well.”

Dan Tokaji and I have just received the page proofs for the 5th edition of Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials.

While we work on corrections, instructors teaching the course might want to see a Summary of the Table of Contents and the Table of Contents (uncorrected).

The book, and a revamped teacher’s manual, will be ready for fall classes. (Information on how instructors can get an advanced copy of the proofs for the casebook, or the proofs for the soon-to-be-published The Voting Wars, is available here.)

Here’s a brief description of what’s new for the 5th edition: “The new streamlined and student-friendly Fifth Edition of Election Law: Cases and Materials fully covers developments in election law in the 2012 election season including; extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well. For the first time, an electronic version of the casebook will be available as well.”

One thing new in the teacher’s manual: model syllabi for a variety of course emphases, including a general election law course, a campaign finance course, and an election administration course.

Dan Tokaji and I are thrilled to have sent off the files for the 5th edition of Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials,  to the publisher today for typesetting.

It, and a revamped teacher’s manual, will be ready for fall classes. (Information on how instructors can get an advanced copy of the proofs for the casebook, or the proofs for the soon-to-be-published The Voting Wars, is available here.)

Here’s a brief description of what’s new for the 5th edition: “The new streamlined and student-friendly Fifth Edition of Election Law: Cases and Materials fully covers developments in election law in the 2012 election season including; extensive coverage of Citizens United, super PACs, and other campaign finance developments; emerging issues in voting rights and redistricting, including coverage of the Texas redistricting and voter identification cases; and new coverage of issues in judicial elections. It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses. The extensive campaign finance coverage makes the book appropriate for a campaign finance seminar as well. For the first time, an electronic version of the casebook will be available as well.”

One thing new in the teacher’s manual: model syllabi for a variety of course emphases, including a general election law course, a campaign finance course, and an election administration course.

Vol. 56, No. 3 looks like a must-read for election law scholars.  Here’s the Table of Contents:

TEACHING ELECTION LAW
TEACHING BUSH V. GORE AS HISTORY …………………. Richard L. Hasen 665

TEACHING ELECTION ADMINISTRATION ………………… Daniel P. Tokaji 675

ELECTION LAW AS APPLIED DEMOCRATIC THEORY …………………………… James A. Gardner 689

THE NATURAL AND THE FAMILIAR IN POLITICS AND LAW ………………………….. Michael R. Dimino 701

SERIOUSLY FUNNY: UNDERSTANDING CAMPAIGN FINANCE POLICY THROUGH THE COLBERTSUPER PAC ……………………………………………… R. Sam Garrett 711

TEACHING ELECTION LAW TO POLITICAL SCIENTISTS ………………………………… Bruce E. Cain 725

WHEN AND HOW TO TEACH ELECTION LAW IN THE UNDERGRADUATE CLASSROOM ………………………………………………… Paul Gronke 735

ELECTION LAW AS ELECTIVE OF CHOICE ………….. Kirsten Nussbaumer 747

ONE PERSON, ONE VOTE: TEACHING “SIXTH GRADE ARITHMETIC” ……………………. Michael J. Pitts 759
ENLIVENING ELECTION LAW …………………………….. Joshua A. Douglas 767

ELECTION LAW: TOO BIG TO FAIL? ………………………….. Chad Flanders 775

TEACHING ELEMENTS OF ELECTION LAW BEYOND THE DISCIPLINARY BORDERS OF “ELECTION LAW” …………………………………. Frances R. Hill 789
EMPHASIZING VOTING RIGHTS IN AND OUT OF THE CLASSROOM: A SERVICE LEARNING MODEL TOWARD ACHIEVING A JUST DEMOCRACY …………………………….. Denise Lieberman 801

Volume 121, Issue 7
May 2012

• 1584
  Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments
  Richard M. Re & Christopher M. Re
  121 Yale L.J. 1584 (2012).

  The Reconstruction Amendments are justly celebrated for transforming millions
  of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
  In arguing that voting laws should not discriminate on the basis of morally insignificant statuses,
  such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of
  retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former
  slaves were not just compared with virtuous military veterans, as commentators have long
  observed, but were also contrasted with immoral criminals. The mutually supportive
  relationship between egalitarian enfranchisement and punitive disenfranchisement—between
  voting and vice—motivated and shaped all three Reconstruction Amendments.
  Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated
  the enfranchisement of black Americans. This conclusion complicates the conventional
  understanding of how and why voting rights expanded in the Reconstruction era.

  Criminal disenfranchisement’s previously overlooked constitutional history illuminates
  four contemporary legal debates. First, the connection between voting and vice provides new
  support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses
  criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s
  endorsement of criminal disenfranchisement extends only to serious crimes. For that reason,
  disenfranchisement for minor criminal offenses, such as misdemeanors, may be
  unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes
  recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the
  Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical
  relationship between voting and vice suggests that felon disenfranchisement is specially
  protected from federal regulation but not categorically immune to challenge under the Voting
  Rights Act.

  Read more…

• 1672
  Due Process as Separation of Powers
  Nathan S. Chapman & Michael W. McConnell
  121 Yale L.J. 1672 (2012).

  From its conceptual origin in Magna Charta, due process of law has required that
  government can deprive persons of rights only pursuant to a coordinated effort of separate
  institutions that make, execute, and adjudicate claims under the law. Originalist debates about
  whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive
  due process” have obscured the way that many American lawyers and courts understood due
  process to limit the legislature from the Revolutionary era through the Civil War. They
  understood due process to prohibit legislatures from directly depriving persons of rights,
  especially vested property rights, because it was a court’s role to do so pursuant to established
  and general law. This principle was applied against insufficiently general and prospective
  legislative acts under a variety of state and federal constitutional provisions through the
  antebellum era. Contrary to the claims of some scholars, however, there was virtually no
  precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the
  use of property. Contemporary resorts to originalism to support modern substantive due process
  doctrines are therefore misplaced. Understanding due process as a particular instantiation of
  separation of powers does, however, shed new light on a number of key twentieth-century cases
  which have not been fully analyzed under the requirements of due process of law.

  Read more…

• 1808
  Redistricting Commissions: A Better Political Buffer?
  Bruce E. Cain
  121 Yale L.J. 1808 (2012).

  The new institutionalism in election law aims to lessen the necessity of court
  intervention in politically sensitive election administration matters such as redistricting by
  harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
  improve the politics associated with drawing new district boundaries. As the recent round of
  redistricting comes to a close, I offer some observations about ICCs as effective court
  redistricting buffers. My basic points are as follows. Independent citizen commissions are the
  culmination of a reform effort focused heavily on limiting the conflict of interest implicit in
  legislative control over redistricting. While they have succeeded to a great degree in that goal,
  they have not eliminated the inevitable partisan suspicions associated with political line-drawing
  and the associated risk of commission deadlock. Additional political purity tests and more careful
  vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should
  adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan
  stakes and encouraging coalition building among stakeholders.

  Read more…

• 1846
  Districting for a Low-Information Electorate
  Christopher S. Elmendorf & David Schleicher
  121 Yale L.J. 1846 (2012).

  Most commentary on redistricting is concerned with fairness to groups, be they
  racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
  how the configuration of districts affects the ability of low-information voters to secure
  responsive, accountable governance. We show that attention to the problem of voter ignorance
  can illuminate longstanding legal-academic debates about redistricting, and that it brings into
  view a set of questions that deserve our attention but have received little so far. District designers
  should be asking how alternative maps are likely to affect local media coverage of representatives,
  as well as the “branding” strategies of political party elites. Bearing these questions in mind, we
  offer some tentative suggestions for reform.

  Read more…

• 1888
  Weightless Votes
  Joseph Fishkin
  121 Yale L.J. 1888 (2012).

  Does “one person, one vote” protect persons, or voters? The Court has never
  resolved this question. Current practice overwhelmingly favors equal representation for equal
  numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of
  some individual voters’ votes. This Essay examines what that might mean, and concludes that
  there is no coherent individual interest in the “weight” of a vote. It argues that the one person,
  one vote doctrine is really about something else: protecting the political power of numerical
  groups. In light of this conclusion, the last section of this Essay explores whether the numerical
  groups this doctrine protects ought to include all persons living in a jurisdiction, or only the
  citizens of voting age.

  Read more…

• 1912
  Recognizing Character: A New Perspective on Character Evidence
  Barrett J. Anderson
  121 Yale L.J. 1912 (2012).

  Courts have historically regulated the use of character in trials because of its
  potential to prejudice juries. In order to regulate this type of proof, courts must be able to
  recognize what is and is not character evidence, but past attempts to define character in the law
  of evidence have been unsatisfactory. This Note proposes a new framework to help courts
  unravel this age-old mystery. By considering legal scholarship in conjunction with psychological
  research and employing common tools of statutory interpretation, this Note contends that proof
  must have two components for it to be regulated by the character scheme in the Federal Rules of
  Evidence: propensity and morality. It then explains the elements of each component under the
  Federal Rules regime, examines several evidentiary examples drawn from real cases to illustrate
  how courts would apply the proposed framework, and concludes by discussing the broader
  implications of this new perspective on character evidence.

  Read more…

• 1970
  Cross-National Patterns in FCPA Enforcement
  Nicholas M. McLean
  121 Yale L.J. 1970 (2012).

  This Note undertakes an empirical examination of U.S. enforcement actions under
  the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns
  associated with the United States’ international antibribery enforcement. I investigate a number
  of possible determinants of FCPA enforcement, including variation in the level of U.S. foreign
  direct investment (FDI), cross-national variation in corruption levels, the level of foreign
  regulatory and enforcement cooperation with the United States, and U.S. foreign policy
  interests. I find that higher levels of U.S. FDI and higher levels of corruption are significantly
  associated with increased FCPA enforcement, as is the presence of bilateral mechanisms of
  enforcement cooperation. In contrast, other variables—including the level of foreign policy
  alignment between the host nation and the United States—do not appear to be associated with
  variation in FCPA enforcement. In addition, I find that cross-national variation in the number of
  FCPA cases in a given country is much more closely associated with actual recorded experience
  with corruption (as measured by cross-national survey instruments) than with more widely used
  measures of corruption perceptions. Finally, I employ data on past enforcement actions to
  generate a cross-national measure of the “FCPA enforcement-action intensity” of U.S. FDI, and I
  consider the potential use of such an index as a measure of FCPA country risk.

  Read more…

121 Yale L.J. 2013 (2012).

[Bumping to the front now that I turned in my final corrections to Yale University Press today for The Voting Wars [whew!]]

Teaching election law during the fall of a presidential election year is a real treat (I remember teaching it during Florida 2000, which was thrilling).  I strongly recommend doing so.

If you are teaching the course, you should know of two books which will be available in time for those with a fall class: (1) the Fifth Edition of Election Law-Cases and Materials by Lowenstein, Hasen and Tokaji, and (2) The Voting Wars: From Florida 2000 to the Next Election Meltdown (forthcoming, Yale University Press).

Dan Tokaji and I are hard at work on the 5th edition of the Election Law casebook.  We are working to streamline the book and make it more student-friendly, cutting back on some of the notes and rearranging the material for ease of teaching.  The book will be up-to-date, including extensive coverage of Citizens United, super PACs, and other campaign finance developments (the book would be suitable for a seminar on campaign finance) as well as new developments in voting rights and redistricting, including coverage of the Texas redistricting cases. There will be expanded coverage of judicial elections.  It will continue to include perspectives from law and political science, and is appropriate in both law and political science courses.  For the first time, an electronic version of the casebook will be available as well.

My book The Voting Wars will also be available.  Several political scientists are already assigning my draft manuscript this term.  This is a book written for a non-technical audience, which uses stories to tell of the battles over election administration over the last dozen years, including issues such as voter fraud, voter suppression, voter identification, voting technology, and to explain how the rise of social media is changing the face of election disputes. This book will be available for the Kindle and in other electronic formats as well.

If you need advanced copies of either book, let me know and I will put you in touch with the right publisher’s representative.

And now back to our regularly scheduled programming.

Check it out.

Rick Garnett blogs:

Shamelessness ahead:  First Amendment Stories (Foundation 2011), edited by Andrew Koppelman and some guy named Garnett, is out and available.  Buy yours today, here.  It would make a wonderful ____ gift for, well, anyone.  The stories of 17 of the Court’s most interesting and important free-speech and religious-freedom cases and controversies — from the Sedition Act to the Ten Commandments and football-prayer and lots of ones in between – are explored in depth by a diverse group of First Amendment scholars, including Prawfs’ own Paul Horwitz and guest-blogger Scott Moss.  As Larry Solum might say:  “Highly recommended” and “[buy] it [whether or not] it’s hot”!

I have a chapter in the book on the Nine Lives of Buckley v. Valeo.

Kirsten Nussbaumer has posted this draft on SSRN (forthcoming, St. Louis University Law Review symposium on teaching election law).  Here is the abstract:

This article, an invited contribution to a symposium on teaching election law, presents election law as a field that is fundamentally, inescapably interdisciplinary in nature and, on that account, of special value for our students. The interplay of doctrinal reasoning, empirical political science, and humanistic inquiry that characterizes election law is well-suited for both the traditional law school classroom and a practicum in election law.

Turn off the Internet when you walk into class.

I have previously published links to election law syllabi for courses taught in law school.  Thanks to Paul Gronke, here are some undergraduate course syllabi.

Sam Garrett

Denise Lieberman

Ken Mayer

Kirsten Nussbaumer [link and name corrected]

Kieran Williams

Update:  Here is Jim Tucker.

Here.

This link should be a good starting point for students doing basic research on election law topics.  I plan to direct my new seminar students to it in a few weeks.

The 2011 Supplement to Election Law-Cases and Materials (Lowenstein, Hasen, & Tokaji, 4th ed. 2008) is on its way to the printer, You can preorder it here with a 10% discount.  If you are an instructor and you need an advanced copy of the page proofs for your fall classes, send an email to Suzanne Morgan of Carolina Academic Press (smorgen-at-cap-press.com).  It should ship to bookstores in mid-August.

The 150-page supplement features edited versions of the most recent important Supreme Court cases, including this term’s Arizona Free Enterprise case, along with Citizens United, NAMUDNO, Doe v. Reed, and Caperton.  It features up-to-date notes on campaign finance controversies going into the 2012 elections as well as redistricting issues, including Voting Rights Act issues, going into the new round of redistricting.

You can get the info via this link.  The supplement to our casebook will cover developments through the end of the current Supreme Court term, including McComish.

I’ll be teaching Election Law for the first time as a 2-credit seminar.  (In the past I’ve done a 3-credit course or seminar.)  Deciding what to cut will be a huge challenge.