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Democracy and Law

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Further from the People? The Puzzle of State Administration

Miriam Seifter

Civil society today vitally supplements the traditional legislative and judicial checks on the powerful federal executive branch. As many commentators have observed, individuals, interest groups, and media outlets actively monitor, expose, and impede federal executive misdeeds. But much of government administration now occurs in the states. State executive branches have burgeoned in size and responsibility in recent decades, and state and national leaders advocate further expanding state authority. Underlying such calls is a notion that states are “closer to the people” than the federal government, and thus more attentive and responsive to the public’s needs. Yet commentators seldom question these premises, and there is scant attention to whether and how civil society constrains administration in the states.

This Article identifies and theorizes the role of civil society oversight at the state level. It finds that state agencies frequently lack the civil society check that commentators celebrate at the federal level. State agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media. These insights complicate certain tenets of federalism theory—those that assume a close connection between state governments and their citizens—while strengthening theories concerned about state-level faction. As a practical matter, civil society oversight is one factor that can help explain serious regulatory failures in the states—and more optimistically, success stories. Finally, attending to civil society oversight can highlight reforms available to those who seek a state government that is more visible to and constrained by its people.

Political Paralysis and Timing Rules

Frank Fagan

In Response to: Make Me Democratic, But Not Yet

This Essay builds on the framework of Daniel Herz-Roiphe and David Singh Grewal for overcoming political paralysis with timing rules as set forth in their recent article, “Make Me Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism.” They suggest that delayed implementation of controversial policies with sunrise rules increases the likelihood that those policies will become law. Lawmakers may not agree to a difficult reform that takes effect today, but they may agree to a difficult reform that takes effect tomorrow.

In addition to sunrise rules, I suggest that a different species of timing rule can help overcome gridlock, i.e. stabilization rules. Stabilization rules facilitate agreements differently from sunrise rules in one important respect: Instead of expanding the space for agreement by leveraging time, they do so by creating multiple versions of the same policy that apply conditionally. For example, suppose that climatologists desire a carbon tax and that skeptics oppose it. Setting aside who has the better evidence, climatologists and skeptics both justify their positions on the basis of scientific claims. To facilitate compromise, lawmakers can counterintuitively ignore the evidence altogether and instead create a stabilization rule. That rule implements a tax only when a conditional event occurs, say, when average annual temperature is increased by 1.2 degrees over pre-industrial levels or some other threshold. Otherwise, the tax is not placed into effect. This form of lawmaking recognizes that a current generation may be willing to reduce consumption for a future one, so long as it is certain that its reduction will achieve its desired effect. By expanding the space for sacrifice, stabilization rules can satisfy the normative framework of Herz-Roiphe and Grewal and its deep connection with Kantian principles of guardianship.

The Essay examines federal budget law along the same lines and offers some comments on Herz-Roiphe and Grewal’s discussion of using sunrise amendments to reform the Electoral College and representation in the Senate.

Frank Fagan, Political Paralysis and Timing Rules, 91 N.Y.U. L. Rev. Online 43 (2016).

Testing the Marketplace of Ideas

Daniel E. Ho, Frederick Schauer

Oliver Wendell Holmes’s notion of the marketplace of ideas—that the best test of truth is the power of an idea to get itself accepted in the competition of the market— is a central idea in free speech thought. Yet extant social science evidence provides at best mixed support for the metaphor’s veracity, and thus for the view that the truth of a proposition has substantial explanatory force in determining which propositions will be accepted and which not. But even if establishing an open marketplace for ideas is unlikely to produce a net gain in human knowledge, it may have other consequences. We illustrate how to empirically study the consequences of establishing or restricting a communicative domain. Our focus is on time, place, and manner restrictions, and we examine two potential natural experiments involving speech buffer zones around polling places and health care facilities providing abortions. Using a regression discontinuity design with geocoded polling information for over 1.3 million voters in two high-density jurisdictions (Hudson County and Manhattan), we provide suggestive evidence that speech restrictions in Hudson County reduced turnout amongst voters in the buffer zone. By failing to cue voters of the election, speech restrictions may have unanticipated costs. And using difference-in-differences and synthetic control matching with state-level data from 1973 to 2011, we illustrate how one might study the impact of speech restrictions around health care facilities. Although the evidence is limited, Massachusetts’s restrictions were accompanied, if anything, by a decrease in the abortion rate. Buffer zones might channel speech toward more persuasive forms, belying the notion that the cure for bad speech is plainly more speech.

Rhetoric and Reality

Rebecca L. Brown, Andrew D. Martin

Testing the Harm of Campaign Spending

In its landmark campaign finance decision Citizens United v. FEC, the Supreme Court found that favoritism or influence over elected officials gained by wealthy campaign contributors does not—in the absence of outright corruption—give rise to the sort of constitutional harm that would justify restrictions on campaign spending. The Court was also insistent that any perceptions of ingratiation would not undermine the electorate’s faith in democracy. This paper challenges the doc- trinal and empirical underpinnings of those assertions. We argue that a loss of faith by the electorate implicates a central constitutional value and is a sufficiently compelling interest to justify campaign finance regulation. We also demonstrate empirically that the Court should not have been so confident that the elecorate’s faith in democracy is unaffected either by the appearance of influence or access due to campaign spending or by independent expenditures.

Testing Shaw v. Reno: Do Majority-Minority Districts Cause Expressive Harms?

Stephen Ansolabehere, Nathaniel Persily

The Supreme Court’s decision in Shaw v. Reno established an “analytically distinct” constitutional claim of racial gerrymandering for majority-minority districts drawn predominantly on the basis of race. The case was and continues to be controversial, because the precise nature of the injury caused by such districts has been a persistent source of debate. Shaw districts did not minimize a group’s representation, but rather they communicated an “expressive harm” due to signals they sent to the electorate and representatives that the jurisdiction relied too much on race in the construction of a district. Such districts, the Court argued, communicated racial stereotypes that individuals belonging to the same racial group were politically interchangeable, despite their many social and economic differences. This paper tests the “Shaw hypothesis” with recent survey data. We find no patterns in racial attitudes based on the shape and racial composition of a congressional district. We do, however, find substantial and expected gaps among racial groups concerning attitudes toward the practice of majority-minority districting, Section 5 of the Voting Rights Act, and job approval of the respondent’s representative.

Professor Ronald Dworkin

Jeremy Waldron, Lewis A. Kornhauser, The Honorable Stephen Breyer, T.M. Scanlon, Rebecca L. Brown, Liam Murphy, Robert B. Silvers, Thomas Nagel

Last year, the NYU community lost an intellectual giant in Professor Ronald Dworkin. The school and the Law Review joined together to honor Professor Dworkin’s writings, ideas, and of course, his legendary colloquia. Academics, philosophers, and judges gathered to pay tribute. In the pages that follow, we proudly publish written versions of those tributes.1 The ceremony closed with a short video clip of one of Professor Dworkin’s last speeches, titled Einstein’s Worship. His words provide a fitting introduction:

“We emphasize—we should emphasize—our responsibility, a responsibility shared by theists and atheists alike, a responsibility that we have in virtue of our humanity to think about these issues, to reject the skeptical conclusion that it’s just a matter of what we think and therefore we don’t have to think. We need to test our convictions. Our convictions must be coherent. They must be authentic; we must come to feel them as our convictions. But when they survive that test of responsibility, they’ve also survived any philosophical challenge that can be made. In that case, you burnish your convictions, you test your convictions, and what you then believe, you better believe it. That’s what I have to say about the meaning of life. Tomorrow: the universe.”