Law Commons^™

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Dysfunction, Deference, And Judicial Review, Barry Friedman, Margaret H. Lemos

Faculty Scholarship

This symposium poses a provocative question: Should judges exercising the power of judicial review defer to the political branches as a means of giving voice to the “will of the people”? The inquiry assumes a connection between majority will and the outputs of the political branches—a connection we argue is frayed, at best, in the current political context.

In the first part of this Essay, we highlight how well-known aspects of our political system—ranging from representational distortions in federal and state governments to the relationship between partisan polarization and the behavior of elected officials—call into question whether political outcomes reliably …

Dartmouth College V. Woodward And The Structure Of Civil Society, Ernest A. Young

Faculty Scholarship

No abstract provided.

Presidential Responses To Protest: Lessons Jefferson Davis Never Learned, Ashlee Paxton-Turner

Faculty Scholarship

No abstract provided.

The United States As An Idea: Constitutional Reflections, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market effi­ciency; but, I argue, closer to their heart is antistatist fear of entrench­ment …

Normcore, Jedediah Purdy

Faculty Scholarship

The proliferating "crisis-of-democracy" literature, like The Fast and the Furious franchise, has only one plot. And, like the crash-up car-chase movies, it has not let this fact slow its growth. Likely none of these books would exist—certainly none would be remotely the same—if Hillary Clinton had pulled a hundred thousand more votes out of the Midwest in 2016. All are organized around the shock of Trump's victory and allege a national and international crisis of democracy. Just what is the crisis? What is missing from these works, and the commentariat that they represent, is a genuine reckoning with twenty-first-century questions: …

Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles

Faculty Scholarship

Federal and state law prohibit government officials from accepting gifts or “emoluments” from outside sources. The purpose of gift bans, like restrictions on more explicit forms of bribery, is to protect the integrity of political processes and to ensure that decisions about public policy are made in the public interest — not to advance a private agenda. Similar considerations animate regulations on campaign funding and lobbying. Yet private entities remain free to offer gifts to government itself, to foot the bill for particular public projects they would like to see government pursue. Such gifts — dubbed “patriotic philanthropy” by one …

Continuity And The Declaration Of Independence, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Democratic Rulemaking, John M. De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

This paper examines to what extent agency rulemaking is democratic. It reviews theories of administrative rulemaking in light of two normative benchmarks: a “democratic” benchmark based on voter preferences, and a “republican” benchmark based on the preferences of elected representatives. It then evaluates how the empirical evidence lines up in light of these two approaches. The paper concludes with a discussion of avenues for future research.

Reynolds Reconsidered, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …

Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Democratic Development And The Public Sphere: The Rights To Hear And Be Heard In Ghana, Duke Law School Seminar And Fact-Finding Trip To Ghana

Duke Law Student Papers Series

No abstract provided.

Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Can Mature Democracies Be Perfected?, Guy-Uriel Charles

Faculty Scholarship

One of the more vexing questions about democracy that is often debated among political theorists, political scientists, and legal scholars is whether the democratic character of mature democracies can be improved. From one view, that of democratic realists, mature democracies are perfected as a matter of definition and as a matter of realistic expectations. Because mature democracies are those that respect core democratic principles, variations outside the core are simply policy differences based upon each democratic polity’s willingness to engage in a different set of trade-offs. For democratic realists, variations in democratic practice that are not related to core democratic …

Could And Should America Have Made An Ottoman Republic In 1919?, Paul D. Carrington

Faculty Scholarship

Numerous Americans, perhaps especially American lawyers, have since the 1780s presumed to tell other peoples how to govern themselves. In 2006, that persistent impulse was once again echoed in an address to the American Bar Association by a Justice of the Supreme Court. The purpose of this essay is to question the wisdom of this evangelical ambition, especially when the form of instruction includes military force. It is draws on Spreading America's Word (2005) and directs attention to the hopes of American Protestant Zionists to make a democratic republic in Ottoman Palestine. It suggests that chances were better in 1919 …

Writing Other Peoples’ Constitutions, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Mandatory Constitutions, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz

Faculty Scholarship

Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …

How Much Does Money Matter In A Direct Democracy?, John M. De Figueiredo

Faculty Scholarship

No abstract provided.

The Cracked Foundations Of The Right To Secede, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles

Faculty Scholarship

Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …

Constitutional Design: An Oxymoron?, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Markets, Democracy, And Ethnicity: Toward A New Paradigm For Law And Development, Amy L. Chua

Faculty Scholarship

No abstract provided.

Judicial Restraint In The Administrative State: Beyond The Countermajoritarian Difficulty, Matthew D. Adler

Faculty Scholarship

Arguments for judicial restraint point to some kind of judicial deficit (such as a democratic or an epistemic deficit) as grounds for limiting judicial review. ("Judicial review" is used in this Article to mean, essentially, the judicial invalidation of statutes, rules, orders and actions in virtue of the Bill of Rights, or similar unwritten criteria.). The most influential argument for judicial restraint has been the Countermajoritarian Difficulty. This is a legislature-centered argument: one that points to features of *legislatures*, as grounds for courts to refrain from invalidating *statutes*. This Article seeks to recast scholarly debate about judicial restraint, and to …