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Full-Text Articles in Law
Legitimacy, Legality, Legacy, And The Life Of Democracy, Joshua Ulan Galperin
Legitimacy, Legality, Legacy, And The Life Of Democracy, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
The Trump Administration challenged notions of good governance. It challenged our expectation of majoritarian legitimacy to the extent only a minority of voters elected President Donald Trump in 2016. It challenged our demands for reasoned decision-making insofar as the President sought to dismantle the administrative state and govern by fiat. It challenged our expectation of checks and balances in the way it approached appointments and removals to accumulate power at the expense of congressional design. These challenges sound in different legal theories, but they all reflect shattered expectations of good governance. And yet, the most lasting legacy of the Trump …
Note, Making Ballot Initiatives Work: Some Assembly Required, Portia Pedro
Note, Making Ballot Initiatives Work: Some Assembly Required, Portia Pedro
Faculty Scholarship
For over one hundred years, the ballot initiative or proposition has been touted as a solution to some of the problems in the representative system of democracy in the United States. Depending on a state’s ballot initiative system, this mechanism enables citizens to make laws, to create or eliminate rights, or to amend the state’s constitution through a popular vote. Popular initiatives were initially intended to allow ordinary citizens to intervene in the democratic process when their representative officials were not carrying out their wishes. These proposition processes were supposed to create a space for public deliberation. By allowing the …
Deliberation Or Tabulation? The Self-Undermining Constitutional Architecture Of Election Campaigns, James A. Gardner
Deliberation Or Tabulation? The Self-Undermining Constitutional Architecture Of Election Campaigns, James A. Gardner
Buffalo Law Review
Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The …
Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders
Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders
All Faculty Scholarship
My paper deals with two subject areas - deliberative democracy theory and election law - that have had surprisingly little contact with another. My paper tries to remedy this lacuna by looking at how the two fields intersect and can contribute to the understanding of one another. In particular, I look in detail at a particularly prominent proposal by two political theorists, Bruce Ackerman and James Fishkin's Deliberation Day, and how the aims of that proposal might be frustrated by the present structure of American election law. I argue that because they fail to take into account certain structural features …