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Full-Text Articles in Law
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler
All Faculty Scholarship
Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …
Rational Reasonableness: Toward A Positive Theory Of Public Reason, Gillian K. Hadfield, Stephen Macedo
Rational Reasonableness: Toward A Positive Theory Of Public Reason, Gillian K. Hadfield, Stephen Macedo
Gillian K Hadfield
Why is it important for people to agree on and articulate shared reasons for just laws, rather than whatever reasons they personally find compelling? What, if any, practical role does public reason play in liberal democratic politics? We argue that the practical role of public reason can be better appreciated by examining the structural similarities in normative and positive political theory. Specifically, we consider the analytical parallels between Rawls’ account of political liberalism and a rational choice model of legal order recently proposed by Hadfield & Weingast (2011). The positive model proposes that a shared system of reasoning—a common logic—plays …
Does The Constitutional Process Matter?, Zachary Elkins
Does The Constitutional Process Matter?, Zachary Elkins
Zachary Elkins
Constitution-making is a ubiquitous but poorly understood phenomenon. There is much speculation but relatively little evidence about the impact of different design processes on constitutional outcomes. Much of the debate reduces to the question of who is involved in the process and when. We consider two central issues in this regard. The first is the problem of institutional self-dealing, or whether governmental organs that have something to gain from the constitutional outcome should be involved in the process. The second has to do with the merits of public involvement in the process. Both of these concerns have clear normative implications …
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 …