Category Archives: theory

Jim Gardner has posted this draft on SSRN (forthcoming, St. Louis U. L. Rev.).  Here is the abstract:

Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s connection to two fields with which it is inextricably allied: democratic theory and empirical political science. This enriched context reveals election law for what it truly is: the institution that bridges the gap between our aspirations for, and the frequently messy reality of, our political lives. It is the middle term in an equation that specifies whether and to what extent we realize perhaps the most significant dream of contemporary human beings: to live well under a just and lasting democracy.

The California Law Review has now published a symposium including Rick Pildes’s important article on the rise of partisanship and responses from Paul Frymer, David Kennedy, Michael McConnell, and Nolan McCarty.

Chad Flanders has posted this draft on SSRN (Alaska Law Review).  Here is the abstract:

Both Joey Fishkin’s and Justin Levitt’s responses to my article, “How Do You Spell MURKOWSKI?” deal thoughtfully with the deeper questions raised by the Murkowski litigation. They both wonder, in various ways, what the right way to think about voter assistance should be. But they approach the issue from very different angles. Fishkin focuses on the state’s obligation to assist voters: to what extent, and in what ways, is the state obligated to help voters vote? Levitt approaches the question of voter assistance from nearly the opposite angle: what responsibilities do voters have in making sure that their vote counts, and when are they properly considered “at fault” when their vote is cast incorrectly? In my brief response, I want to raise a few questions of my own about Fishkin’s and Levitt’s analysis of the right to vote.

I have read the others in this symposium (Flanders’ original piece, and the Levitt and Fishkin replies).  I’m looking forward to reading this one as well.  The whole series is short and interesting.

Rick Pildes, with a new piece on elections exceptionalism. From the abstract:

This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political activity for constitutional purposes. Elections should be conceived as distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposes arguably can be undermined or corrupted by actions such as the willingness of candidates or officeholders trade their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere – including how elections are financed – might be constitutionally permissible that would not otherwise be permissible outside the electoral sphere, including in the arena of democratic debate more generally. The essay argues that this is the form of argument best structured to be accepted within the American constitutional tradition and that is necessary to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. If such regulation would be desirable as a policy matter, its permissibility would depend on the ability to develop First Amendment principles permitting such regulation while still prohibiting regulations that some would see as somewhat similar in non-electoral environments.

Even if the Supreme Court has implicitly rejected this argument in Citizens United (without directly confronting the argument), the various possible ways of responding constitutionally to the decision, through federal or state legislation, administrative regulation, or corporate governance rules, depend on conceptualizing clearly the nature of the underlying problem and the justifications for the specific policy response being adopted. Whatever the merits of any particular response, this essay argues that the best underlying justification for such responses will depend on recognizing the distinct values, purposes, and justifications that underwrite the role of elections in democratic societies.

As with all of Rick’s work, I’m looking forward to reading this.

Tabatha Abu El-Haj has published this article in the NYU Law Review.  I just received a copy in the mail and I can’t wait to read it.  Here is the abstract:

The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing
elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.
Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process.
First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America