I’ve posted this new essay, co-authored with Sam Issacharoff, at SSRN. The essay is forthcoming in 26 Theoretical Inquires in Law __ (2025). Here’s the abstract:

The declining ability of the state to deliver effective outcomes on the major issues of the day is among the greatest challenges democracies currently face. In this essay, we address two features of contemporary structures of democracy that contribute to this problem. One is excessive participatory requirements that have arisen based on the belief that government functioning must be more directly accountable to interested stakeholders. Process necessarily imposes its own costs and reformers too often think the problem with the functioning of government is always to expand participation even further. In the U.S., the way the practices of agency notice and comment have developed, as well as those of judicial review and other forms of accountability, now contribute to a long wind-up process for government action, too often followed by cost overruns, delay and, too frequently, abandonment of the project. This is the process that Francis Fukuyama aptly dubs the rise of “vetocracy.” 

A second means through which state capacity has declined reflects the weakening of the political parties. Absent strong parties to channel choice and enforce trade-offs between different constituencies, each proposed piece of legislation has to organize its own constituency out of disparate interest groups. The result is a decrease in legislation overall and a tendency for legislatures, even when in the hands of one party, to engage in largely symbolic legislation intended to signal virtue generally, even at the expense of accomplishing very much. These two features of contemporary practice contribute to the weakening of state capacity and the current dissatisfaction with democratic governments.