The Yale Law Journal Pocket Part has published my essay, Ending Court Protection of Voters from the Initiative Process (html version here), 116 Yale L.J. Pocket Part 115 (2006). It begins: “When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But there’s also a story about measures that courts have kept off the ballot in a misguided effort to protect voters from making hard or bad choices. In this short essay, I argue that states should repeal their ‘single subject’ rules because judicial enforcement leads to arbitrary, perhaps result-oriented decisions that don’t benefit voters.”
It has also published Dale Oesterle’s The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right (html version here), 116 Yale L.J. Pocket Part 120 (2006). A snippet: “The South Dakota experience offers two important lessons for other states. First, it reveals that the referendum process is a useful method for handling controversial issues. Referenda promote public discussion and debate, educate voters on important policy matters, and cause voters to pay attention to the actions of their elected representatives….The second lesson from the South Dakota experience is that state courts should carefully scrutinize the ’emergency clauses’ frequently present in legislation.”