an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Setting the Agenda in Election Law Scholarship Coda: A Response to Friendly Critics
Last week I outlined my proposal for developing a new specialty in election law to study the electoral reform process. Academics and reformers will always tell you that substance shapes process -- that the structures of our democracy help determine the substance of our politics (who gets elected, what gets passed). What has puzzled me is why we have not applied that lesson to the electoral reform process. The structure of the reform process in the United States determines what kind of reform gets passed . . . or, rather, it ensures that almost nothing gets passed. I thus argued that rather than continuing to fight reform battles on this hostile turf, we should think more systematically on how to change the underlying terrain.
Bruce Ackerman and Ethan Leib have been kind enough to offer thoughtful responses to my posts. Their quarrel is that the specialty I am proposing should not be confined to election law but should extend across fields. Were I being flip, I might respond that it seemed hubris enough to suggest a new specialty within my own discipline, let alone propose a whole a new field. But I actually agree with much of what Ackerman and Leib have to say. In fact, our main disagreement is about starting places, not ending points.
Ackerman and Leib are certainly correct to conclude that the "here to there" problem exists in virtually every field and that the gap I identified in election law scholarship exists elsewhere. Like election reformers, policymakers and reform advocates work almost entirely at the micro-level (figuring out how to pass a particular proposal) and do not think systematically about how to alter the institutional terrain on which reform battles are fought. Election law scholars work at too high a level of generality for these purposes. We advocate campaign finance rules or redistricting reform in order to achieve a "healthier" democracy or "better" substantive outcomes without specifying precisely what that healthy democracy or those better substantive outcomes will look like. There is clearly a good deal of terrain between the micro-level battles fought to pass a particular piece of legislation and the macro-level proposals that make up the bulk of election law scholarship. And Ackerman and Leib are right that in that gap lies not just a study of the electoral reform process, but study of the reform process generally. They are also right to think that many of the proposals I outlined -- advisory committees, citizens' commissions, harnessing partisan incentives, baselining -- are portable to other substantive areas.
My initial instinct was to respond to Ackerman's and Leib's posts by claiming that electoral reform is special. The field, after all, grew from the efforts of scholars to figure out whether it made sense to import constitutional principles wholesale into the electoral arena (concluding, for the most part, that it did not). And there are important ways in which electoral reform is unusual, if not unique. Bruce, for instance, argues that electoral reform ought to be easier because "heavy hitters like Exxon or General Motors" have no reason to oppose reform. Perhaps, though I suspect the world of corporate lobbyists would be turned topsy-turvy if serious electoral reform ever got passed. Nonetheless, they key difference is that there is no need for heavy hitters to "buy" legislators in order to block reform in the electoral context. Legislators are happy to block reform without being bought because changes in the status quo are generally contrary to their self-interest. Similarly, electoral reform politics differ in many ways from reform politics generally (a subject for future blogging). Whether those differences stem from institutional structures or not, the electoral reform game seems to be played differently than, say, the environmental or labor reform game.
The trouble with my initial instinct, however, is that the academy is divided between lumpers and splitters, and I am decidedly a lumper. I certainly think it is possible to insist on election law's exceptionalism without falling into the trap of disciplinary parochialism. But in this context it is easy for me to imagine the kinds of connections and synergies that Ackerman and Leib envision. While election law would presumably be a crucial part of this emerging discipline, so, too, would legislation scholarship, political science, and a variety of other scholarly work.
My real source of hesitation is simply a methodological one (and perhaps here there is no disagreement between me and Ackerman/Leib). As Cass Sunstein has pointed out in an exchange with Ronald Dworkin (29 Ariz. St. L. 389), a good deal of legal argument involves contextual, bottom-up, analogical reasoning. What is true of legal argument seems equally true of the development of fields within legal scholarship. I would like to have a chance to work out these questions bottom-up -- beginning in one substantive area and working outward, moving from narrow problems to broad generalities -- rather than try to develop a cohesive theory of such a broad field top-down. Perhaps this instinct is unforgivably autobiographical. I spent most of my pre-tenure years working out puzzles in my own field before thinking about how the insights of election law might apply to constitutional theory more generally. Similarly, my posts on developing a new specialty came from thinking about how a set of seemingly discrete problems I'd been writing about fit together.
Nonetheless, when I think about what, if any, comparative advantage legal scholars have over members of other academic disciplines, I think Cass gets it just about right. I would be thrilled if a whole new field studying the reform process or "democratic institutional design" were to emerge. But I think we are more likely to learn something useful if we first think about these questions in discrete, concrete terms before trying to reach across disciplinary boundaries. Thus, while I think Ackerman and Leib are probably right about end points, I have a different vision about how to get from my "here" to their "there." Posted
by Heather K. Gerken [link]
If there's some way to ensure (without being accused a "racist") that only legally registered voters vote, that would be a great starting point for me.
It helps to have worked on the other side of the revolving door where lobbyists inhabit the parallel world of experts who support legislators by providing a direct conduit to business needs and the expertise developed by successful executives. The tricky part is human ingenuity's tendency to make a profit by each engagement of the regulatory system. To me, this is why a living corpus of laws and a vigorous three branch government supplemented by media such as this valuable academic blogsite, are the best way to channel the most salubrious instincts, and to catch and punish the baser proclivities of all participants. I appreciate the lofty theoretical plane of the multipart presentation, and look forward to further developments. Prof. Sunstein visited here last year for some interesting repartee; perhaps, if the author is aligned best with his views, both of you might make a return visit for further discussion. However, what your concepts sound like to me likely would be presented best at conferences by experts, perhaps with a slant more toward instituting a new field of specialization and a new voting worldview based on academic factfinding. I recall some of the hand wringing durng VRA renewal in the previous congress at hearings, and wonder how far the political discussion has progress, and whether mere humans will be detached enough to devise a new context for voting. Although there is much controversy about the new HAV equipment variously being installed, sued, uninstalled, and replaced, I suspect another decade of electronic development, and realworld experiments in programming code trusteeships and inspections will improve the inchoate efforts so far. d.c. al fine