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Full-Text Articles in Law
Populist Prosecutorial Nullification, Kerrel Murray
Populist Prosecutorial Nullification, Kerrel Murray
Faculty Scholarship
No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of …
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter
Faculty Scholarship
In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.
This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended …
What Happened In Iowa?, David Pozen
What Happened In Iowa?, David Pozen
Faculty Scholarship
Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).
November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …