Category Archives: theory

Heather Gerken has posted this draft on SSRN (Duke Law Journal).  Here is the abstract:

Much of constitutional theory is preoccupied with a single question: What does a democracy owe its minorities? And most of the answers to this question fit naturally into the two categories Albert Hirschman made famous: voice and exit. On both the rights side and the structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, as if no other option exists. The First Amendment, for instance, offers minorities the right to free speech (voice) and private association (exit).

Exit and voice are not, however, the only options available to a minority group seeking influence. That’s because much of the nation’s administrative structure looks more like Tocqueville’s democracy than Weber’s bureaucracy. In our highly decentralized and partially politicized system, minorities can wield influence over national policy because they routinely administer it. State officials regularly run federal programs, often with governors and state legislators serving nominally bureaucratic roles. Federal policy is often implemented by local juries and local prosecutors, state and local school boards, and state-created agencies. Because national minorities often constitute local majorities in the United States, these institutional arrangements ensure that those with outlier views help set federal policy. Voice and exit thus aren’t the only paths of influence for minorities. Minorities can also exercise agency in their ongoing quarrel with the center because they are often the center’s agents.

Retooling Hirschman’s frame to include agency, then, doesn’t just draw our attention to an underappreciated avenue of minority influence. It raises questions as to why voice and exit have entirely dominated constitutional theory — why scholars who are interested in minority empowerment have overlooked the role that administrative arrangements can play in furthering that goal.

Jim Gardner has posted this draft on SSRN.  Here is the abstract [update: it appears that only an abstract appears right now with no paper to download]:

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now on the books is to narrow electoral choice; it seeks at every step to exclude views from public conversation in a process of winnowing out those that command the support only of a minority. Deliberative democracy’s goals and methods, in contrast, stress at every turn the inclusion of many voices, especially those of minorities and of the socially and politically excluded. Deliberative democracy’s goal is not to identify a majority entitled to rule, but to destabilize and transform that majority by exposing its members to opinions and beliefs they do not already hold. Election law resists such a process. As a result, any attempt to incorporate principles of deliberative democracy into the design of election law faces serious and deeply entrenched obstacles.

On the other hand, deliberative democracy may well have a valuable role to play by helping to make the process of public opinion formation outside election campaigns fairer, better informed, and more deliberative. This is in any case where most of the real action takes place: public political opinion is not formed to any significant degree during the brief season of elections and their formal campaigns – within, that is to say, the small slice of political life that falls within the domain of election law proper. On the contrary, public political opinion is formed continually, and therefore mainly between elections. Consequently, if the process of public political opinion formation falls short of deliberative ideals, deliberative democracy can do the most good by addressing itself to the arena of quotidian, non-electoral politics.

Heather K. Gerken and Michael S. Kang

Ethan J. Leib, David L. Ponet & Michael Serota

Jim Gardner has posted this draft on SSRN (forthcoming, St. Louis U. L. Rev.).  Here is the abstract:

Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s connection to two fields with which it is inextricably allied: democratic theory and empirical political science. This enriched context reveals election law for what it truly is: the institution that bridges the gap between our aspirations for, and the frequently messy reality of, our political lives. It is the middle term in an equation that specifies whether and to what extent we realize perhaps the most significant dream of contemporary human beings: to live well under a just and lasting democracy.

The California Law Review has now published a symposium including Rick Pildes’s important article on the rise of partisanship and responses from Paul Frymer, David Kennedy, Michael McConnell, and Nolan McCarty.

Chad Flanders has posted this draft on SSRN (Alaska Law Review).  Here is the abstract:

Both Joey Fishkin’s and Justin Levitt’s responses to my article, “How Do You Spell MURKOWSKI?” deal thoughtfully with the deeper questions raised by the Murkowski litigation. They both wonder, in various ways, what the right way to think about voter assistance should be. But they approach the issue from very different angles. Fishkin focuses on the state’s obligation to assist voters: to what extent, and in what ways, is the state obligated to help voters vote? Levitt approaches the question of voter assistance from nearly the opposite angle: what responsibilities do voters have in making sure that their vote counts, and when are they properly considered “at fault” when their vote is cast incorrectly? In my brief response, I want to raise a few questions of my own about Fishkin’s and Levitt’s analysis of the right to vote.

I have read the others in this symposium (Flanders’ original piece, and the Levitt and Fishkin replies).  I’m looking forward to reading this one as well.  The whole series is short and interesting.

Rick Pildes, with a new piece on elections exceptionalism. From the abstract:

This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political activity for constitutional purposes. Elections should be conceived as distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposes arguably can be undermined or corrupted by actions such as the willingness of candidates or officeholders trade their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere – including how elections are financed – might be constitutionally permissible that would not otherwise be permissible outside the electoral sphere, including in the arena of democratic debate more generally. The essay argues that this is the form of argument best structured to be accepted within the American constitutional tradition and that is necessary to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. If such regulation would be desirable as a policy matter, its permissibility would depend on the ability to develop First Amendment principles permitting such regulation while still prohibiting regulations that some would see as somewhat similar in non-electoral environments.

Even if the Supreme Court has implicitly rejected this argument in Citizens United (without directly confronting the argument), the various possible ways of responding constitutionally to the decision, through federal or state legislation, administrative regulation, or corporate governance rules, depend on conceptualizing clearly the nature of the underlying problem and the justifications for the specific policy response being adopted. Whatever the merits of any particular response, this essay argues that the best underlying justification for such responses will depend on recognizing the distinct values, purposes, and justifications that underwrite the role of elections in democratic societies.

As with all of Rick’s work, I’m looking forward to reading this.

Tabatha Abu El-Haj has published this article in the NYU Law Review.  I just received a copy in the mail and I can’t wait to read it.  Here is the abstract:

The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing
elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.
Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process.
First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America