Glen Staszewski has posted on SSRN The Bait and Switch in Direct Democracy (Wisconsin Law Review). Here is the abstract:

This Article provides a case study of the bait-and-switch in direct democracy based on a ballot initiative that recently amended the Michigan Constitution to prohibit the legal recognition of same-sex marriage or similar union for any purpose. The bait-and-switch in direct democracy occurs when initiative proponents (1) qualify a particularly popular idea for the ballot; (2) draft the measure in sufficiently broad or ambiguous terms to create collateral consequences; (3) either evade questions about those collateral consequences during the election campaign or flatly deny that they were intended; and (4) establish the collateral consequences through litigation or by lobbying executive officials who are responsible for implementing the measure. The Article claims that structural flaws in the initiative process facilitate this technique and otherwise increase the risk that successful ballot measures will have collateral consequences that were not approved by the voters. The Article evaluates the ability to alleviate these problems through existing procedural safeguards or the adoption of interpretive techniques that narrowly construe ambiguous ballot measures to minimize collateral damage. While endorsing the latter solution, the Article contends that these problems could be attacked more directly by the adoption of structural reforms that have proven effective in other contexts. Finally, the Article explains that the shortcomings of candidate elections and the ordinary legislative process do not undermine the rationale for reform proposals of this nature because the ballot initiative process has a distinct capacity to combine passionate voting (by the electorate) and instrumental lawmaking (by initiative proponents and others) in a way that is especially prone toward divergence (based on inadequate structural safeguards). The bait-and-switch in direct democracy is so troubling because it capitalizes on precisely this state of affairs.

He has also posted Avoiding Absurdity (Indiana Law Journal). Here is the abstract:

American courts have always interpreted statutes contrary to their plain meaning to avoid absurd results. John Manning, a prominent new textualist scholar, has recently challenged the legitimacy of the absurdity doctrine on the grounds that it cannot be justified by legislative intent or squared with principles of constitutional law. His critique relies, however, upon deeply contested economic theories of the legislative process and constitutional structure that view lawmaking as a market in which self-interested participants compete for resources.
This Article provides a comprehensive theoretical defense of the absurdity doctrine that relies instead upon significant aspects of civic republican theory, as well as liberal and pragmatic values, to suggest that while American lawmakers have broad authority to regulate in the public interest, our constitutional republic also has a responsibility to avoid needless harm to the extent fairly possible. When courts interpret laws to avoid absurd results – or privilege a statute’s spirit over its letter – in circumstances that were unanticipated by the legislature, they are justifiably seeking to serve the common good that legislation is presumed to embody, rather than undermining a fragile compromise struck in back-room deals by economic theory’s proverbial rent-seekers. The absurdity doctrine also promotes specific constitutional norms of fairness and equal treatment in a manner that avoids most of the institutional concerns that would arise from more aggressive approaches to judicial review. Not only is Professor Manning’s critique of the absurdity doctrine therefore mistaken, but his apparent willingness to incorporate the same underlying principles into his kinder and gentler version of textualism demonstrates both the undeniable validity of those principles and the fundamental shortcomings of the economic theories of the legislative process and constitutional structure that underlie the new textualism.