Still Lost in the Political Thicket (or Why I Don\u27t Understand the Concept of Vote Dilution)

I still don\u27t get it. I can see why as partisans of this or that set of policies we will still care about how district lines are drawn, even if each district has an equal number of voters. We might wish to maximize black representation. We might wish to elect Democrats, or liberals, or incumbents. What I cannot see, however, is why the Constitution, or a supposedly nonpartisan measure like the Voting Rights Act,I should be enlisted in these partisan battles. Professor Karlan does an admirable job of exploring whether and to what extent blacks benefit politically from being concentrated in a small number of districts rather than being spread more thinly among more districts. I cannot gainsay anything she says. My problem with what she says is not that I think she is wrong, but that I do not understand the normative principles from which she is proceeding and that animate her concern. To put it simply: Why should the law care whether blacks-or Democrats, or anyone else--benefit from a * Warren Distinguished Professor of Law, University of San Diego. I would like to thank Professor Barry Friedman, Ellen Armentrout, and all the members of the Vanderbilt Law Review who helped organize and run this Symposium. I would also like to thank the Florida Law Review for granting me permission to borrow heavily from my article Lost in the Political particular way of drawing district lines, so long as the principle of one-person, one-vote is respected? The bogey here, I take it, is something called vote dilution. The drawing of district lines matters, we are told, because not every one-person, one-vote system is kosher. Some systems that formally comply with one-person, one-vote involve diluting the votes of some groups, while others do not. This dilution undermines the equality of the franchise that one-person, one-vote is meant to establish

A Confucian Version of Hybrid Regime: How Does It Work and Why is It Superior?

There are four problems with democracy, especially the institution of one person one vote. Many democratic and liberal thinkers understand them and try to correct them from within. But I will argue that these revisions are fundamentally inadequate to address these problems.A better political arrangement to deal with this fact than today’s democracies is a hybrid regime that contains both democratic and meritocratic elements, which is what a Confucian would propose. I will illustrate the basic arrangements of this regime, and show why it can deal with the aforementioned fact and so why it is superior to today’s democratic regimes

Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, a covenant with death and an agreement with hell. Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: If slavery were not wrong, nothing is wrong. Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery previously had been constitutional, and for this reason, the original Constitution was deeply flawed. But in 1845 one man disagreed with the conventional wisdom. That man insisted that slavery was not only a moral abomination; it was also unconstitutional. His name was Lysander Spooner and he defended this position in a book, entitled The Unconstitutionality of Slavery. While rejecting his conclusion, Garrison wrote of Spooner\u27s argument: We admit Mr. Spooner\u27s reasoning to be ingenious--perhaps, as an effort in logic, unanswerable. Historians of abolitionism know Spooner\u27s name, but lawyers, law professors and their students generally do not. This is a pity. For Lysander Spooner deserves a place of honor among American lawyers, both for the principles for which he stood against the crowd and for the brilliance with which he defended those principles. In this Essay, though the author will be unable to do his analysis complete justice, he wants to describe the method of constitutional interpretation that led Spooner to his conclusion about slavery. In many ways, Spooner\u27s interpretive approach has a very modern ring. In important respects, however, his approach is preferable to those commonly used today and worthy of study for this reason alone

Hunting in Maine

Hunting remains a common practice for many people in the state of Maine. While the stories and traditions held by hunters differ from person to person and family to family. There are commonalities that aid in building the sense of community between hunters in the state of Maine. This hunting community is strengthened through the sharing of stories and the common traditions shared by many. These communities remain strong even as the Maine landscape and hunting legislation changes over time. Here a number of questions regarding hunting are explored through the lens of one family spanning multiple generations through oral interviews. This thesis analyzes the stories and interviews of this family to find commonalities in the hunting community and answer important questions like “why do we hunt?

Getting the Math Right: Why California Has Too Many Seats in the House of Representatives

One person, one vote sounds like a simple mathematical equation. Actually, it isn\u27t quite that easy, but over the last forty years, the Supreme Court has distilled a fairly stable and predictable test for resolving the basic issue of equal representation: how much population difference between districts is permissible? In one area of representation, however, the Court has gotten the math wrong. In its only opinion on the decennial apportionment of Congress, the 1992 case U.S. Department of Commerce v. Montana, the Court punted. Rather than apply its well-established test from the districting cases, the Court deferred to Congress on the ground that different ways of measuring equality of representation produced different apportionments, and thus Congress, rather than the Court, should choose the best measure. Unfortunately, that conclusion was based on a mathematical error. As an abstract matter, applying the districting test to apportionment makes sense. Apportionment and districting are opposite sides of the same coin. In districting, one has a fixed number of representatives, and the geographic area must be cut into pieces to accommodate them. In apportionment, the geographic area is already divided into states, and the representatives must be parceled out among the divisions. In both instances, the goal is equal representation for equal numbers of people. In both instances, the same test should apply. But when the Court tried to apply the districting test to apportionment, it was misled by its mathematical mistake. Relying on numbers provided by the parties, the Court thought it was looking at a calculation of relative deviation-the test used in the districting cases-when it was not. Instead, it was looking at a different computation, and, not surprisingly, this alternative computation produced results that conflicted with other indications the Court had. The Court thus concluded that the relative deviation test could not be applied to apportionment because the results that the Court reached under the test sent mixed signals about the appropriate measure of representation. This Article does the mathematics correctly. It provides a unified account of one person, one vote for both the districting cases and the apportionment of Congress, explaining why the same measure of one person, one vote -relative deviation-should apply to both districting and apportionment. I argue that the Court may be constitutionally required to apply this test in the apportionment context, and I demonstrate the method of finding the apportionment that best satisfies the requirement. The apportionment method that best satisfies the one person, one vote test is unlike any method previously in use. Calculated under this method, the current Congress would have three fewer representatives from California and one more from each of South Dakota, Delaware, and Montana. In general, larger states lose representatives and smaller states gain. Part II describes the evolution of the one person, one vote standard for districting cases. Part III relates the history of apportionment of the House and examines the sole Supreme Court case on the requirements of apportionment. In particular, this Part shows how an arithmetic error caused the Court\u27s confusion about how to measure compliance with one person, one vote in the apportionment context. Having established a clear foundation, Part IV sets forth the prima facie case that the current apportionment of the House is out of compliance with the one person, one vote test from the districting cases. Part IV also considers possible counterarguments and concludes that they are not persuasive. This does not end the inquiry, however, since under the one person, one vote test, the government has the opportunity to demonstrate that the current apportionment serves a legitimate political interest. Such a defense relies on technical properties of apportionments, and so I begin Part V with a discussion of the various methods of apportionment, including the new method that I propose. After laying the groundwork, I show that the legitimate government interests that support apportionment do not support the use of the current method of apportionment over my proposed method. In Part VI, I outline some of the political consequences that would result from my proposed method of apportionment.

Otter Realm, February 15, 2007

Celebrating Nature\u27s Finest Flower: CSUMB\u27s seventh annual production of The Vagina Monologues -- Marina transportation upgrade -- Faculty joins statewide protest -- Campus becomes victim of serial vandalism -- Tuition increases again -- Seaside development underway -- New students find CSUMB unwelcoming -- Ocean Illuminations -- Celebrating Natures Finest Flower -- \u27Monologues\u27 have a deeper significance for one student -- Fog box records live -- Slanguage at World Theater -- Incidents & Quinncidents -- Adam\u27s Pics: President Jesus -- Drink deals for everyday of the week -- Otters look to make a splash in 2007 -- Aloha Grace on Fire -- Soccer after sunset -- Otter Waves -- Softball team ready for season two -- Kung Fu: the legend continues -- Person on campus: If you had one phone call from jail who would you call and why? -- Predictions are in for baseball\u27s 2007 seasonhttps://digitalcommons.csumb.edu/otterrealm/1153/thumbnail.jp

Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree upon terms that are beyond the power or competence of courts to dictate. These are powerful forces, and they produce settlement in a very high proportion of litigated disputes. Once in a while, however, the process fails and a case goes to trial. Why do these failures occur? One answer is obvious. For every trial, there is at least one person - an attorney, a client, a claims manager - who said no to a settlement. Who said no, and why? We asked lawyers and we received a wide range of answers: The client was stubborn ; The plaintiff wanted too much ; We didn\u27t think their case had any merit ; They just wouldn\u27t pay anything ; It was a family feud and a matter of pride ; and so on.4 Everyone seems to agree that these vetoes are not random, but a great deal more is needed to explain why few disputes are tried while the great majority are not

Who\u27s Black, Who\u27s White, and Who Cares: Reconceptualizing the United States Definition of Race and Racial Classifications

How much would it be worth to a young man entering upon the practice of law, to be regarded as a white man rather than a colored one?... Probably most white persons if given a choice, would prefer death to life in the United States as a colored person.... Indeed, [being white] is the master-key that unlocks the golden door of opportunity. There is no law of the United States, or of the state of Louisiana defining the limits of race-who are white and who are colored\u27? By what rule then shall any tribunal be guided in determining racial character? It may be said that all those should be classed as colored in whom appears a visible admixture of colored blood. By what law? With what justice? Why not count every- one as white in whom is visible any trace of white blood? There is but one reason to wit, the domination of the white race.\u2