The Right to Participate

The following essay is excerpted and adapted from The Law of Democracy: Legal Structure of the Political Process, © The Foundation Press, Inc., Westbury, NY (1998). Publication is by permission. Constitutions are often viewed today as constraints on majoritarian power in the service of minority interests. But constitutional ground rules also create the possibility of ongoing democratic self-government; constitutions establish relatively stable and non-negotiable precommitments that enable generally accepted structures of political competition to emerge and endure. Despite the centrality of this role for the American Constitution , however, there is paradoxically little that the text or its history offers in the way of directly relevant guidance. In part, this esults from the great silences of the Constitution regarding the structure of electoral politics - a silence that often reflects Americas peculiar federal structure, in which so much regarding the ground rules of political competition was left to be settled at the state level. Thus, neither the original Constitution nor the Fourteenth Amendment secured even the basic right to vote

The right-to-manage default rule

We critically examine the right-to-manage as a legal default rule. We then assess the merits of alternative process and content defaults, as well as non-waivable terms and conditions. Finally, we suggest how various options might be combined in different circumstances

Activism and Legitimation in Israel's Jurisprudence of Occupation

Colonial law need not exclude the colonized in order to subordinate them, and ‘activist’ courts can advance the effect of subordination no less than ‘passive’ courts. As a case study, this article examines the jurisprudential legacy of the Israeli Supreme Court in the context of the prolonged Israeli occupation of Palestine. Applying insights from legal realist, law and society, and critical legal studies scholarship, the article questions the utility of using the activist and passive labels. It illustrates how the Israeli activist court, through multiple legal and discursive moves, has advanced and legitimated the colonization of Palestine; that the court is aware of its role; and that arguments that focus on the court’s informal role do not mitigate this legitimating effect. Unlike other scholars, the article shows that the Israeli court’s role—by extending the power of judicial review to the military’s actions in the occupied areas—is neither novel nor unique or benevolent, as the British colonization of India and the US colonization of Puerto Rico show