Electoral Sandbagging

An insidious tactic threatens elections across the United States. Some refer to it as a “bait and switch.” Others recognize a form of “election sabotage.” While the labels vary, the pattern is the same. First, an election official or other figure of authority consents to an error at an early stage of the election process. The actor then waits to see how the election unfolds. If the election results are favorable, the error slides into irrelevance. If not, that same actor refers back to the earlier error, now with indignity, and insists that it requires a late-stage disruption of the election process. The aim of this maneuver—a maneuver this Article terms “electoral sandbagging”—is to install a favored candidate into office. An effect is to imperil the election process from within. This Article, the first to identify and examine this pattern, connects it to another phenomenon: sandbagging in the courtroom. There, Justice Scalia defined the practice as “suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error.” Unsurprisingly, judges have long recognized and denounced this tactic. Sandbagging in the election context warrants even stronger censure. Among other harms, electoral sandbagging fundamentally undermines the fairness of election proceedings and otherwise strikes at the heart of democratic governance. By exposing and contextualizing this growing phenomenon, this Article provides guidance for a path forward. In addition, by demonstrating how electoral sandbagging thrives in the shadows—its perpetuators dependent on dissembling and subterfuge—this Article helps to counteract its effects

Environmental Protection: Law and Policy

https://scholarship.law.uci.edu/celebration_of_books_2022-2023_book-covers/1006/thumbnail.jp

Ann Southworth

Ann Southworth at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1000/thumbnail.jp

Myth-Busting Restorative Justice: Uncovering the Past and Finding Lessons in Community

A common narrative about modern restorative justice is that it is a revival of historic and indigenous justice practices that have been practiced around the world. Critics of this narrative call it a myth, arguing that the claim is overbroad and unsupported by existing evidence. Embedded in this conversation are questions about how to respect the contributions of indigenous traditions and avoid whitewashing. Such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor. But ignoring the indigenous contribution to restorative justice altogether is whitewashing by a different route. This Article offers three main contributions. First, it reveals the current lack of empirical grounding for the common narrative. This descriptive insight motivates the second contribution: the creation of a methodology for better ascertaining the degree to which any historic, indigenous practice did constitute restorative justice. Applying this methodology to investigate the traditional practices of the Igbo and Acholi in sub-Saharan Africa, the Article begins the work of documenting the relationship between restorative justice and historic practices, work that leads to the third and last contribution. Better conceptualizing past practices not only advances our understanding of such practices but also contributes to our understanding of modern restorative justice. Here, the case studies of the Igbo and Acholi reveal a need for restorative justice scholars to engage in greater conceptual and empirical analysis of the role of community in restorative justice practices

Religion, Discrimination, and the Future of Public Education

The Supreme Court’s recent decisions regarding the free exercise of religion threaten fundamental changes to public education. On their face, these decisions are relatively narrow. They prohibit states from explicitly excluding religious schools from participating in states’ tuition subsidy programs, otherwise known as private school vouchers. But school choice advocates and some scholars argue that the rationale in these cases also extends to religious organizations that want to operate public charter schools. While these changes would drain enormous resources from an already underfunded public education system, even more important interests are at stake: antidiscrimination and basic core curriculum. More specifically, the further expansion of religion into voucher and charter programs calls into question whether states can require religious organizations to comply with antidiscrimination protections and deliver non-religious educational content that is consistent with state standards. This Article is the first to demonstrate that religious schools’ right to participate in certain education programs is not a right to reset all the rules of those programs. First, states retain authority to control the curriculum that public dollars support in both charter and private schools. Second, states have an affirmative obligation under federal law to ensure that all parties participating in state education programs comply with secular and antidiscrimination standards. Thus, rather than using the Court’s recent free exercise cases as an excuse to retreat from antidiscrimination and secular standards, states must reinforce those norms in a way that is consistent with newly established—but limited—free exercise rights

Gregory Shaffer

Gregory Shaffer at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1001/thumbnail.jp

Group Photo

Group Photo at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1004/thumbnail.jp