Jurij Toplak has posted Equal Voting Weight of All: Finally ‘One Person, One Vote’ from Hawaii to Maine?. Here is the abstract:

The ‘one person, one vote’ rule requires districts within states to have precisely equal populations. However, the populations of districts differ from state to state, varying from under 500,000 to over 900,000 people. The cause lies in the so-called method of apportionment. Through history, several different methods have been used, but all have failed to allocate to states their exact and fair share of representation. This article challenges this systemic distortion of the ‘one person, one vote’ principle by inviting readers to consider a weighted voting model that distributes the states’ power in the House of Representatives exactly ‘according to their Numbers’. The application of this model would result in an exact mathematical equality of each vote’s weight regardless of the voter’s state of residence. The article also suggests why the courts may even find the model to be a constitutional imperative.

Jim Brudney has written Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect. Here is the abstract:

This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.
First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions – if true – should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in “minor” cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.
The article’s second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices’ use of legislative history since 1986. In the face of Justice Scalia’s fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals’ strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia’s strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

Jim has also written Intentionalism’s Revival. Here is the abstract:

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter “BLMRod”) that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007.
The essay situates BLMRod’s article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod’s use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors’ approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may enhance the value of legislative history when contrasted with key interpretive resources generated by the two other branches of government – i.e., the canons of construction and agency rules or adjudications.
The essay then adopts a more critical perspective toward BLMRod’s treatment of the compression (lawmaking) and expansion (law-interpreting) processes. It suggests that by viewing the compression process as essentially a majority party domain, the authors undervalue important congressional conversations involving minority party members, especially although not exclusively in the Senate. Further, the essay discusses how the architecture of congressional conversations may differ across subject matter areas more than the authors’ basic model seems to contemplate. Finally, the essay addresses the process of expansion, particularly BLMRod’s approach to conversations among a bill’s coalition of supporting members. It suggests ways in which the authors’ analysis of what motivates ardent and pivotal supporters, and how courts should treat these two key groups when elaborating the meaning of text, may be in need of some refinement.