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Full-Text Articles in Law
The Possible Futures Of American Democracy, Jedediah Purdy
The Possible Futures Of American Democracy, Jedediah Purdy
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
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 …
Patriotic Philanthropy? Financing The State With Gifts To Government, Margaret H. Lemos, Guy-Uriel Charles
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
Continuity And The Declaration Of Independence, Darrell A. H. Miller
Faculty Scholarship
No abstract provided.
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
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
Ethnic Power Sharing: Three Big Problems, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Dissent, Diversity, And Democracy: Heather Gerken And The Contingent Imperative Of Minority Rule, Guy-Uriel Charles
Faculty Scholarship
No abstract provided.
Direct (Anti-)Democracy, Maxwell L. Stearns
Direct (Anti-)Democracy, Maxwell L. Stearns
Faculty Scholarship
Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken.
Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article …
Can Mature Democracies Be Perfected?, Guy-Uriel Charles
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 …
Mandatory Constitutions, Paul D. Carrington
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
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
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
The Cracked Foundations Of The Right To Secede, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Constitutional Design: Proposals Versus Processes, Donald L. Horowitz
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
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 …
The Role Of Law In The Functioning Of Federal Systems, George A. Bermann
The Role Of Law In The Functioning Of Federal Systems, George A. Bermann
Faculty Scholarship
Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …
Constitutional Design: An Oxymoron?, Donald L. Horowitz
Constitutional Design: An Oxymoron?, Donald L. Horowitz
Faculty Scholarship
No abstract provided.