Getting From Here to There in Resistricting Reform

This symposium has been largely devoted to whether and how we ought to reform our districting process. Today I want to talk about a related but often neglected question: if we are serious about reform, how do we make it happen? I will thus set aside some of the important normative and practical questions associated with what kind of redistricting reform we should pursue and focus instead on how to get from here to there. As we think about getting redistricting reform passed, we ought to ask ourselves three questions. First, what should our goals be during the 2010 cycle? Second, moving from principle to practice, what specifically can we do to promote reform during this period? Third, if we succeed in getting some traction with reform post-2010, what kind of reform proposals should we push

Exit, Voice, and Disloyalty

This Lecture begins with a puzzle about Albert Hirschman’s famous work Exit, Voice, and Loyalty: Why do we make much of exit and voice but utterly neglect loyalty? It’s a question that goes well beyond Hirschman’s book. For example, much of constitutional theory is preoccupied with a single question: What doesademocracy owe its minorities? And most of the answers to this question fit naturally into the two categories Hirschman made famous: voice and exit. On both the rights side and the structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, ] as if no other option exists. The First Amendment, for instance, offers minorities the right to free speech (voice) and private association (exit). Similarly, structural arrangements give minorities the chance to vote in national elections (voice) and in state elections (exit)

Our Federalism(s)

Like all academics, federalism scholars typically divide into camps. Some favor state sovereignty; others favor state autonomy. Some insist that states require formal, judicially enforceable protections against federal intrusion; others favor the informal protections afforded by the political process. Some favor cooperative federalism; others are not even sure that cooperative regimes can properly be called federalism. Scholars even divide as to the source of state power in its ongoing competition with the national government. Some imagine states occupying a separate sphere from the federal government. Others assume that some level of state-federal integration is not just inevitable but healthy. Still others imagine that it is useful to have states serve as fully integrated administrative units within the federal system

Rashomon and the Roberts Court

As the opening quip of Pam Karlan’s article suggests, it is difficult to make sensible predictions about the future of the Roberts Court’s election law jurisprudence based upon the two cases decided during its first year. Even law professors are cautious about drawing inferences from two data points. And given the many opinions rendered in Randall v. Sorrell and League of United Latin American Citizens v. Perry (LULAC), such an exercise is more likely to involve chaos theory than geometry. A few years ago, I argued that the Supreme Court was in the midst of a doctrinal interregnum. During those last years of the Rehnquist Court, the Court was aware that a new, cohesive majority would emerge at some point in the future. Due to the vagaries of politics and the timing of retirement decisions, however, no one knew precisely who would be in that majority. For this reason, the Court was trapped in a holding pattern: aware of “the imminence of a paradigm shift, but . . . not sure where the next analytic road [would] lead[,] . . . [it was] content with going through the motions, patching the holes in the existing foundation, holding the doctrinal edifice together a little while longer.” The doctrinal interregnum continues. We are still at least one presidential election away from knowing which coalition will choose the path the Court will take as it wends its way through the political thicket

Playing Cards in a Hurricane: Party Reform in an Age of Polarization

In his Frankel Lecture, Outsourcing Politics: The Hostile Takeover of Our Hollowed-Out Political Parties, Sam Issacharoff suggests that legal changes have systematically disabled the leadership of political parties from exercising sway over their candidates. As a result, party leaders cannot create the necessary incentives for moderation, and office holders are being swept away from the center by the gales of polarization. This Commentary suggests that, at bottom, Issacharoff isn\u27t asking the right question. His Lecture asks how we can reduce the effects of polarization, when the real question may be whether we can. It\u27s possible that legal changes contributed to rising levels of polarization, but it\u27s also possible that the two phenomena occurred simultaneously or, at the very least, that the latter matters a good deal more than the former

Windsor\u27s Mad Genius: The Interlocking Gears of Rights and Structure

This paper offers a new take on Windsor v. the United States, a case on everyone\u27s mind as this issue goes to print given the Supreme Court\u27s recent grant of certiorari in the same-sex marriage cases. Be warned, though. Academics usually come to bury opinions, not to praise them, so I\u27m stepping out of role by saying something nice about a Supreme Court opinion. But I think there\u27s a bit of mad genius in Windsor and that academics have been too quick to dismiss its insights

Abandoning Bad Ideas and Disregarding Good Ones for the Right Reasons: Reflections on a Festschrift

This paper was presented at the 2012 Symposium. Full video is available here

The Costs and Causes of Minimalism in Voting Cases: Baker v. Carr and Its Progeny

Professor Gerken uses Baker v. Carr as a case study for exploring whether and when a minimalist strategy is likely to succeed in voting cases. She makes two arguments. First, she suggests that Baker and its progeny reveal the costs of atheoretical decisionmaking. Without an intermediary theory for explaining what the vague norm of equality should mean in the context of malapportionment, the Court could describe equality only in the most abstract terms. It could not identify sensible limiting principles for the rule it was developing, nor could it defend its own measure of equality against alternative measures. The result was a doctrine plagued by inconsistency, incoherence, and the unthinking adherence to a rigid, mechanical test. The second argument offered in this Article concerns the causes of minimalism in the malapportionment cases. Professor Gerken argues that it is difficult for the Court to develop an appropriate intermediary theory in voting cases because of the unique nature of the claims that arise from the political process. For such claims, the structures by which votes are aggregated and the ways in which individuals align themselves are crucial for understanding most harms. Both elements are difficult to square with a conventional individual-rights approach and the familiar protections it affords against judicial excess and error. Taken together, these two arguments point up the irony of the Court\u27s minimalist strategy in applying one person, one vote. The Court\u27s failure to articulate a set of mediating principles seems to stem from the Court\u27s fear of abandoning the familiar protections against judicial mistake and excess that accompany a conventional individual-rights approach. It turns out, however, that an individual-rights approach without an adequate intermediary theory equally lends itself to judicial abus

An Academic Elegy

It feels like a moment. I know I\u27m supposed to analyze this piece from a purely academic perspective, but first I want to mark the occasion. Guy-Uriel Charles and Luis Fuentes-Rohwer, two of the most astute commentators on the intersection of election law and civil rights, think it\u27s time to give up on section 5 of the Voting Rights Act ( VRA ), perhaps it\u27s even time to give up on the civil rights paradigm altogether., When I assigned this paper to my class, one of the students said that she realized it\u27s time for her to start mourning the VRA because it\u27s never coming back