Two by Gerken

Heather Gerken has put two articles on SSRN. I have read the first, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum (forthcoming in the University of Pennsylvania Law Review). Among other things, the article does a very good job clarifying and moving the debate forward between rights-based election law scholars and structuralists. Here is the abstract:

During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next.

This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.

The second paper, which I have not yet read, is Second-Order Diversity and Disaggregated Democracy (forthcoming Harvard Law Review). Here is the abstract:

uch scholarship focused on democratic design is preoccupied with a single problem: how to treat electoral minorities in a majoritarian system. A term often deployed in those debates, particularly those focused on demographic difference, is diversity. When scholars use the term, they usually mean that something - a class, an institution, a decisionmaking body - should roughly mirror the composition of the relevant population.

The problem with this debate is that its participants often unthinkingly extend theories about diversity derived from unitary institutions to disaggregated ones - institutions where the governance system is divided into a number of equal subparts (juries, electoral districts, appellate panels, schools committees, and the like). Thus, despite their prevalence, scholars have not systematically considered how to tailor our normative commitment to diversity to the unique features of these disaggregated institutions.

This Article is a first step toward providing a conceptual framework for describing a recurring set of trade-offs we face when designing disaggregated institutions. Specifically, the paper claims that there at least two types of diversity - first order and second order. The idea I term first-order diversity fits the conventional understanding; it is the normative vision associated with statistical integration, the hope that democratic bodies will someday mirror the polity. The notion of second-order diversity, proposed here, posits that democracy sometimes benefits from having decisionmaking bodies that do not mirror the underlying population but instead encompass a wide range of compositions. Second-order diversity seeks variation among decisionmaking bodies, not within them. It favors interorganizational diversity, not intraorganizational diversity. It fosters diversity without mandating uniformity.

The notions of first-order and second-order diversity provide a framing device that allows us to connect and synthesize the insights offered by a broad array of legal scholarship in assessing the costs and benefits of each approach. This framework thus allows us to play a divergent set of literatures against one another, to find new grounds of criticism and as-yet unexplored sources of connection among them. And it helps put some meat on the bones of a number of undertheorized design practices, identifying values attached to those practices that scholars have thus far neglected.

Posted by Rick Hasen at October 11, 2004 06:22 AM