Too Clever By Half: The Problem with Novelty in Constitutional Law

As Robert Bennett\u27s article illustrates, the counter-majoritarian difficulty remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, Counter-Conversationalism and the Sense of Difficulty , 95 NW. U. L. Rev. 845 (2001) ] Indeed, one might say that reconciling judicial review and democratic institutions is the goal of almost every major constitutional scholar writing today, including Bennett himself. I have suggested elsewhere that scholars as diverse as Richard Epstein, Antonin Scalia, and Robert Bork on the one hand, and Akhil Amar, Bruce Ackerman, and Ronald Dworkin on the other, are all motivated by a desire to overcome the counter-majoritarian difficulty. Bennett seeks to corral the difficulty by describing a difference between courts and other actors, which he finds more meaningful than references to majoritarianism. Bennett suggests that the academic fascination with the countermajoritarian difficulty arises out of a mistaken view of democracy. Barry Friedman suggests that it comes from a combination of factors, including the rise of legal realism, the stature of many of the early counter-majoritarian theorists, and the dilemma faced by liberals when the 1930s Court\u27s obstructionist interference with democratic processes gave way to the Warren Court\u27s laudable interference with democratic processes. All these explanations--especially Friedman\u27s last--probably contain some truth

A Coase Theorem for Constitutional Theory

There is much to admire about Barry Friedman’s new book, The Will of the People. Explaining how the institution of judicial review was made safe for democracy in America, Friedman’s story is extensively researched, beautifully written, scrupulously nonpartisan about the modern Court, and frequently humorous. What is more, his primary claim—that the Supreme Court of the United States is very much a democratic institution because judicial review always has been responsive to public opinion—is, to a large extent, convincing. I have taught The Will of the People in my first-year constitutional law course, and I plan to do so again. Despite its many virtues, certain aspects of The Will of the People give me pause. For one thing, I fear that the book may fail to fully register the power and potential influence of the particular individuals who sit on the Supreme Court at a given time. If law professors and political scientists may become “so fascinated by the Court as political actor that they [forget] that it is also acted upon politically,” Friedman’s project may be vulnerable to the opposite criticism. That is, the book may under appreciate the capacity of the Justices to shape social values or otherwise to decide important matters effectively with finality. For another thing, even if I am wrong about the Court’s potential efficacy as a political actor, there remains reason for skepticism that the book has tamed the countermajoritarian difficulty, at least when the problem is framed properly. Part I of this essay summarizes Friedman’s main thesis, including his implicit suggestion that the present composition of the Court matters much less than is commonly believed—and may not even matter much at all. Part II offers some reasons to doubt that the substantive visions of the Justices themselves are as relatively inconsequential as Friedman seems to believe. Part III explains why the countermajoritarian difficulty endures even in the wake of Friedman’s formidable contribution

Impartiality, Close Friendships and the Confucian Tradition

This article explores the relationship between friendship and morality. Two ideas have been influential in the history of moral philosophy: the impartial standpoint and close friendship. These two perspectives on thought and action can conflict, however, and such a case is presented here. In an attempt to resolve these tensions, and understand the assumption that gives rise to it, I explore an alternative conception of moral conduct and friendship suggested by early Confucian thought. Within this account, moral conduct is that which aims at harmony, understood as the appropriate blending of different elements. This suggests a conception of friendship that realizes harmony through a focus on shared activities, and the quality of interaction achieved between people as they participate in shared social events. This account offers a novel way of conceptualizing friendship, which also avoids the tension between the impartial standpoint and close friendship

216 Jewish Hospital of St. Louis

https://digitalcommons.wustl.edu/bjc_216/1178/thumbnail.jp

216 Jewish Hospital of St. Louis

https://digitalcommons.wustl.edu/bjc_216/1172/thumbnail.jp

The Cycles of Constitutional Theory

Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances

216 Jewish Hospital of St. Louis

https://digitalcommons.wustl.edu/bjc_216/1173/thumbnail.jp

216 Jewish Hospital of St. Louis

https://digitalcommons.wustl.edu/bjc_216/1176/thumbnail.jp

Writing essays by pictures : redrawing the textbook

This opinion piece considers the textbook as an academic genre and wonders whether, as it could be seen to have been developed based on now outmoded concepts and technologies, the textbook is outmoded itself. It is argued that learning resources need to be designed with the different types of knowledge to be learnt in mind. This is demonstrated with the example of Writing Essays by Pictures, a recently published stand-alone resource that aims to facilitate the researching and writing of a basic research based essay for first year undergraduate students

Legislative Organization and Administrative Redundancy

Congress regularly enacts legislation providing for redundant administrative programs. For example, there are more than 100 federal programs for surface transportation, 82 programs to ensure teacher quality, 80 programs to promote domestic economic development, and 47 programs to provide employment and job-training services. Recent high-profile legislation–-such as the financial-industry reform measure and the health-care reform measure–-add new programs without repealing existing ones directed at the same policy goals. Prior academic analyses generally have not considered why Congress pursues redundancy. This article addresses that question through both theoretical and institutional analysis. The article first constructs an organizational theory that attributes redundancy in administrative programs to the congressional committee system. Specifically, the article demonstrates that two critical components of the existing committee system-–fragmented jurisdictions and parliamentary prerogatives–-systematically bias legislative outcomes in favor of redundancy. Building on leading theoretical accounts of congressional committees from political science, the article then presents a novel cost-benefit analysis of this tendency toward redundancy. It shows that redundancy allows legislators to increase distributive favors for constituents and interest groups but that redundancy is also linked to the desirable pursuit of informational efficiency. Thus, the institutional structures facilitating redundancy have mixed effects. Consequently, the article describes and analyzes specific institutional reforms that trade off the distributive costs and the informational benefits associated with redundancy. One approach would subject more legislative decisions to external advisory processes such as that used to close unneeded military facilities. A second and more promising approach would preserve existing committee jurisdictions but would scale back committees’ parliamentary prerogatives, thereby encouraging redundancy in program design but discouraging redundancy in program implementation