Public Law and Legal Theory Commons^™

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

The Constitution's Political Deficit, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative …

Markets & Democracy: The Illegitimacy Of Corporate Law, Daniel J.H. Greenwood

ExpressO

Corporate law does not conform to ordinary democratic norms. Unlike human citizens, corporations may decide which law will govern their most fundamental acts of self-governance. The corporate law corporation choose in turn influences the corporate goals and decision-making processes that determine what the corporation looks for in corporate law in a reflexive system independent of ordinary political processes.

This system seems on its face to violate the most fundamental principle of popular sovereignty–all non-Delaware citizens of the United States are excluded from even formal participation in the process of determining American corporate law, and even Delaware citizens are reduced to …

Internet Voting With Initiatives And Referendums: Stumbling Towards Direct Democracy, Rebekah K. Browder

Seattle University Law Review

Imagine that it is Tuesday, November 4, 2008, and you realize that you have not yet voted for the candidate that you want to be President of the United States. The polls close at 7 p.m., and it is already 6:45 p.m. Instead of rushing off to the nearest polling place, you simply go to your computer, log in, fill out a ballot, and email your ballot to your designated polling website. The whole process takes fewer than ten minutes, and you have done your civic duty. Leading proponents of Internet voting point to five possible benefits of electronic voting: …

"Dragonslaying." Review Of Democracy Defended, By G. Mackie, Donald J. Herzog

Reviews

Early in the Iliad, the Achaians convene an assembly. There are a lot of them and they're unruly, too. "[Tihe place of their assembly was shaken, and the earth groaned / as the people took their positions and there was tumult. Nine heralds / shouting set about putting them in order, to make them cease their / clamour and listen to the kings beloved of Zeus."' Clutching the scepter that has come to him ultimately from Zeus, the very symbol of his right to speak and be heard, Agamemnon bitterly proposes that the Achaians give up. Nine years of struggle …

Death By A Thousand Signatures: The Rise Of Restrictive Ballot Access Laws And The Decline Of Electoral Competition In The United States, Oliver Hall

Seattle University Law Review

This Article explores one instance of the countermajoritarian problem in American democracy: how to protect the rights of minor parties and independent candidates participating in an electoral system dominated by two major parties. In particular, this Article focuses on the effect of modern ballot access laws on candidates' rights, arguing that courts ought to treat these laws as a presumptively impermissible form of "collusion in restraint of democracy." Although the article borrows the language of antitrust law, this argument is rooted in core constitutional principles and rights guaranteed under the First and Fourteenth Amendments. Nevertheless, the analogy to antitrust law …

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …

Voting Rights At A Crossroads: Return To The Past Or An Opportunity For The Future, Barbara Arnwine

Seattle University Law Review

This keynote address for the 2005 Symposium: Where's My Vote? Lessons Learned from Washington State's Gubernatorial Election was presented by Barbara Arnwine. The focus of the presentation was on "Voting Rights at a Crossroad: Return to the Past or an Opportunity for the Future?" To students who are on the career path to becoming practitioners of law, and to attorneys and law professors, no role is more important than enhancing democracy. Ms. Arnwine's speech addresses the topics of voting rights from a national perspective highlighting the most pressing challenges. In addressing this theme, four areas of voting rights are covered …

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

Peoples Union For Civil Liberties V Union Of India: Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

After Seattle: Public International Organizations, Non-Governmental Organizations (Ngos), And Democratic Legitimacy In An Era Of Globalization: An Essay In Contested Legitimacy, Kenneth Anderson

Working Papers

This working monograph (about 120,000 words) analyzes the relationship between public international organizations such as the United Nations system and international non-governmental organizations under conditions of globalization. It argues that international organizations and international NGOs are locked in an embrace of mutual legitimation, each giving the other important political legitimacy, in favor of liberal internationalism and at the expense of democratic sovereignty. The monograph argues that the legitimacy that each gives the other is based on flawed assumptions about the nature of civil society and "international civil society," on the one hand, and global governance and the possibilities of international, …

America, Defender Of Democratic Legitimacy?, James C. Hathaway

Articles

American exceptionalism - a belief that the United States has a unique mission to lead the world, but ought logically to be exempt from the rules it promotes - is at the root of much of the American academy's effort to rationalize the US government's increasing rejection of multilateralism as the cornerstone of modern public international law. Even American scholars who disagree fundamentally on the problems with multilateralism (Kenneth Anderson arguing that it favours anti-democratic intervention by unelected NGOs, Michael Reisman asserting that it privileges elitist state-based lawmaking in the face of more democratic non-state 'lawmaking' processes) can agree on …

Linking The Visions, Donald J. Herzog

Other Publications

Professor Donald Herzog talks about his teaching and work.

The Future Of Governmental Ethics: Law And Morality, Jon L. Mills

UF Law Faculty Publications

Based on a speech presented at the 16th International Symposium on Economic Crime, Cambridge University, England September 13-19, 1998.

Up From Individualism (The Brennan Center Symposium On Constitutional Law)." , Donald J. Herzog

Articles

I was sitting, ruefully contemplating the dilemmas of being a commentator, wondering whether I had the effrontery to rise and offer a dreadful confession: the first time I encountered the countermajoritarian difficulty, I didn't bite. I didn't say, "Wow, that's a giant problem." I didn't immediately start casting about for ingenious ways to solve or dissolve it. I just shrugged. Now I don't think that's because my commitments to either democracy or constitutionalism are somehow faulty or suspect. Nor do I think it's that they obviously cohere. It's rather that the framing, "look, these nine unelected characters can strike down …

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.

Sanctuary, Redlight Districts, And Washington, D.C.: Some Observations On Neuman's Anomalous Zones (Symposium: Surveying Law And Borders), William I. Miller

Articles

The claim is often made that boundaries obviate disputes if they are clear. But boundaries are inseparable from disputes; they seem to invite them as much as obviate them. Note how natural the collocations "disputed boundary" and "boundary dispute" are. The conventional view that one hears a lot in law schools is that once a bright line is drawn then a boundary is "settled." But that supposes that a clear boundary need not be defended or continually justified or that internal changes in the entity it circumscribes and in some ways defines do not affect the integrity of the boundary. …

Democratic Credentials, Donald J. Herzog

Articles

We've made a mistake, urges Bruce Ackerman. We've failed to notice, or have forgotten, that ours is a dualist democracy: ordinary representatives passing their statutes are in fact the democratic inferiors of We the People, who at rare junctures appear on the scene and affirm new constitutional principles. (Actually, he claims in passing that we have a three-track democracy.)' Dwelling lovingly on dualism, Ackerman doesn't quite forget to discuss democracy, but he comes close. I want to raise some questions about the democratic credentials of Ackerman's view. Not, perhaps, the ones he anticipates. So I don't mean to argue that …

Justifiably Punishing The Justified, Heidi M. Hurd

Michigan Law Review

Contemporary moral philosophy, political theory, and jurisprudence have converged to create a quite baffling dilemma. This dilemma is generated by the apparent incompatibility of three principles, each of which grounds features of our system of law and government, and each of which carries substantial normative weight. The first I shall call the punishment principle - a moral principle, doctrinally entrenched in American criminal and civil law, which holds that individuals who are morally justified in their actions ought not to be blamed or punished for those actions. The second is the principle of the rule of law - a complex …

Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Michigan Law Review

The following pages principally address Professor Sunstein's basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein's case for some regulation - the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein's decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes - changes in common …

Democracy And Its Critics, Cary Coglianese

Michigan Law Review

A Review of Democracy and Its Critics by Robert A. Dahl

A Skeptical Look At Contemporary Republicanism, Terrance Sandalow

Articles

A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …