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The lockdown that has been imposed almost a year back in the wake of COVID-19 has introduced several changes in almost every part of the world. The virus has not only resulted in damages resulting in high mortality and morbidity, but it has also made adverse qualitative changes in the lives of billions while its socio-political repercussions have devastated economies in the Global South. The pandemic has resulted in not only widening the wealth inequalities but it has also exposed the socio-economic vulnerabilities and the way the social protection system has crumbled depriving billions of their right to dignified life. The neoliberal policies being pushed by the governments over the decades has resulted in deepening of crisis that expands during the pandemic. Also, the lockdown imposed by the state led to chain of events that resulted in the loss of hard-gained rights and further marginalized those on margins. Moreover, the records of sufferings of those vulnerable are being erased from the public memory and are being stifled by the compulsory distortion of reality. However, those on the margins continued to resist against the authoritarian regimes. For instance, the ill-planned lockdown in India was imposed amidst the protests when the millions of citizens have been dissenting against the Citizenship Amendment Act. As soon as the lockdown is imposed with merely four hours of warning, millions of migrant workers in cities defied the plea of the Prime Minister and walked thousands of miles to reach their homes. A year later, the resistance took a different hue when thousands of farmers began protesting against the farm laws introduced by the government. Also, the unwarranted policies of intense privatization resulted in increasing unemployment pushed by the state compelled millions of workers and students to join the protest. Currently, the situation is that the state, instead of resolving the crisis caused due to the pandemic, seems to have initiated a war against its own citizens. Those in power are lamenting that `too much democracy’ is obstructing the tough reforms while ignoring the plight of the common citizens. The year of the pandemic, therefore, is about the onslaught of repression by the state whereby the state enacted the anti-people laws and policies behind the garb of lockdown, that have deeply scarred the society, yet on the other side, it has also seen the outrage and the resistance from those who have been marginalized by the autocratic regime. Though the vaccination may heal the impact in terms of morbidity and mortality caused due to the virus, however, achieving justice, political, economic and social, or the democratic ideals as enshrined in the Constitution, may take longer in the society ridden with the inequalities and oppressions at various levels and in different forms. Presently, the situation is that more the state is muzzling the dissent abusing its repressive power, more resolutely are dissenting the protestors. It may therefore be said that the struggle against oppressive policies and laws may continue in the post-COVID world for an idea to forge a better more just world.

Traditional government transparency tools are coming under increasing criticism. Laws like the Freedom of Information Act, once thought to revolutionize democracy by opening up government for all to see, have proven to be relatively rough tools (at best) in accomplishing accountability. While the democratic ideals are still celebrated, the increasing costs of broad open-the-government style laws—both monetary and nonmonetary—have not gone unnoticed. Meanwhile, in the regulatory landscape for private companies, targeted disclosure requirements have become increasingly popular methods of encouraging all manner of socially beneficial behavior, be it curbing pollution, making safer consumer products, or ensuring anti-discrimination. Across a wide variety of sectors, companies and businesses now must disclose to the public specific data regarding business finances, environmental risks, safety hazards, and much more. This Article is the first to apply the regulatory disclosure literature to gain insights on government transparency laws, revealing opportunities for designing transparency requirements to more closely hew to accountability goals. We categorize these laws “targeted transparency as regulation” because though they concern government transparency and not private disclosure, they operate to “regulate” government actions for specific and measurable accountability goals by incentivizing beneficial, ethical, reasoned conduct by agency officials. Further, our experience with disclosure law provides insights on how to design targeted transparency as regulation requirements, including their promises and limits. While no panacea, targeted transparency as regulation has the potential to play a pivotal role in the next generation of government accountability laws and to provide a partial answer to the critics of broad-based open-the-government style oversight.

The protest in Shaheen bagh began on since December 16, 2019 against the Citizenship Amendment Act (CAA), National Register of Citizens (NRC), National Population Register (NPR) and against police brutalities. Now, more than seventy days later, it emerged as a non-violent, creative and an inspiring movement led by women – a movement against fascism, a movement of reckoning based on the ideology of humanity to protect constitution and its values. Its purpose is to counter the hate and polarization spread by the autocratic majoritarian regime. It is a movement which is writing `herstory’ of collective rebellion by women and children, students and artists, professionals and people who came together to resist against the authoritarian state and its anti-people policies. It is about survival with dignity while protecting one’s identity and existence. It is about protecting the human rights. The movement is a step towards reclaiming the soul of India where young and old generations from diverse communities came together to assert that politics of hate and communalism is unacceptable. One of the significant aspects of this movement is that the women across the country came together to protect the idea of India and to hold the state accountable. Against the mighty, arrogant, insensitive, devious state, women well aware of dangers of being arrested, of facing lathis, tear gas shells, pellets or guns, of being hit by goons, of being labelled as anti-national, terrorists and jihadis are bravely protesting continuously facing chilly winters and rains of Delhi and are dealing with the violent tactics and threats of forceful eviction deployed by police and state to remove protestors as they claimed to have block the roads. Based on the Gandhian philosophy, embedded in Constitutional values, grounded in the thinking of BR Ambedkar, Savitri Bai Phule, Fatima Nafees, Bhagat Singh, and many other freedom fighters, it began as a leaderless protest without any nexus with any group or political party who could claim its interest. This movement gained much momentum and within a short span, the ruling party at the Center made Shaheen Bagh an election agenda in the Delhi Assembly elections held in February 2020 where the leaders of BJP made every effort to infantilize, delegitimize and malign the movement using derogatory language and violent actions. In fact, the entire state apparatus and the corporate media is being used to attack peaceful protestors, their cause, action and ideology. Yet, the ideology on which this movement is based emerged victorious and today, Shaheen Bagh has spread to more than 115 places all over India where people are coming out to reclaim their rights, to retrieve democratic ideals and to reject fascism. Shaheen bagh is a live example to show that democracy implies `rule of the people, by the people and for the people’ where citizens are actively yet peacefully expressing their dissent. Currently, the matter is sub-judiced before the Supreme Court and the mediators are negotiating with protestors. The President of USA on his visit to India has commented that he will discuss about the CAA with the PM of India. Even earlier, several human rights organizations including United Nations have expressed their concerns about the CAA. Hence, Shaheen Bagh has acquired an international dimension too. This piece briefly points out several dimensions of Shaheen Bagh movement and the manner in which it is transforming India.

The Canadian federal government’s attestation requirement on the 2018 Canada Summer Jobs (CSJ) application demanded acquiescence to the government’s ideological commitments including its views of abortion as a Charter right, and the government’s views on anti-discrimination. While government officials denied anything amiss and described the matter as a mere “kerfuffle”, Canadian editorial rooms lit up with indignation as the attestation requirement was characterized as a form of compelled speech. Some saw it as heavy-handed bullying. While the 2019 CSJ attestation removed the offensive provision, the 2018 experience led to eight judicial review applications across the country in Federal Court and law suits against the government for breach of Charter rights. This article provides a background and context for the CSJ issue; explains why the issue struck a nerve in the religious community and the media; and discusses the constitutional concerns raised by the requirement. The article argues that the CSJ matter is just an example of the broader problem: any kind of a “values test” imposed as a prerequisite to government funding and programs strikes at the heart of liberal democracy and is a threat to freedom of all citizens. While the government action did not amount to a constitutional crisis, it did raise the specter of what academics’ call “constitutional rot”, wherein the political system becomes dysfunctional instead of upholding democratic ideals of freedom.

This note will explore the implications of recent charter school legislation. The Washington Supreme Court recently held, in League of Women Voters of Washington et al v. State, that charter schools are not “common schools,” and therefore, state funds designated for “common schools” can’t be applied towards supporting charter schools. Part I provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan. Part II argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Allowing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part III addresses whether a system of state-authorized charter schools can achieve the democratic ideal and considers one possible solution.

In principle, democracy figures among the grandest of human aspirations. However, in practice, the democratic system in the United States has fallen far short of its ideals. This paper analyzes the dislocation between democratic ideals and practices. While organizational requisites impose unavoidable logistical limitations, democracy’s most acute failures tend to result from power brokers who tell big fibs about the distribution of power.

The notion of “democratizing criminal law” has an initial appeal because, after all, we believe in the importance of democracy and because criminal law is so important – it protects us from the most egregious wrongs and is the vehicle by which we allow the most serious governmental intrusions in the lives of individuals. Given criminal law’s special status, isn’t it appropriate that this most important and most intrusive governmental power be subject to the constraints of democratic determination?But perhaps the initial appeal of this grand principle must give way to practical realities. As much as we are devoted to democratic ideals, perhaps the path to a better society is one that must recognize inherent weaknesses in the system of democratic action, which necessarily relies upon the judgments of common people. Perhaps, when dealing with things as important as doing justice and preventing crime, we must look instead to experts, such as criminologists and moral philosophers. Perhaps the path to a better society is one that, in this instance, should skirt democratic preferences as needed?More specifically, consider some of the realities that might derail a movement toward democratizing criminal law: First, perhaps there is no such thing as a shared community view of justice on which to base a criminal law, but simply an endless list of individual disagreements. There can be no such thing as a criminal code that reflects community views if there is no such thing as a community view. Second, even if there were a shared community sense of justice, perhaps it is brutish and draconian, something born of anger and suspicion and not something that even the people themselves feel should be enshrined in public principles of liability and punishment. Third, even if community views of justice are in fact enlightened, something that people would be proud to enshrine in public law, perhaps they are not the path to a society with less crime. That is, perhaps the path to effective crime control is not through justice – either the community’s view of it or the moral philosopher’s view – but through more instrumentalist crime-control mechanisms, such as general deterrence or incapacitation of the dangerous. And finally, even if relying upon the community’s views of justice did turn out to be a mechanism of effective crime-control, wouldn’t such a system condemn us to live under the status quo of current community views, when history teaches us that a society can improve itself and the lives of its members only by moving ever forward in refining its judgments of justice?Thus, this brief essay will take up these four questions: Is there any such thing as the community’s views of justice? Are the community’s views of justice brutish and draconian? Why should a criminal law concerned with crime-control care what the community thinks is just? Should the criminal law ever deviate from the community’s shared judgments of justice?

Is there an explanation for the widespread increase of citizenry’s political indifference? The effect of political indifference inevitably affects the normative aspects of democracy in spite of the typology of its structure or the strength of its procedural mechanisms. However, a dominant strand of theory continues to underestimate indifference as a temporary phase of discontentment simply expressed with electoral absenteeism. This study argues instead that the state, or governance, encourages indifference among citizens with the role of altering the cognitive basis of polity and crumbling collective consciousness and moral objectivity. My interpretation problematizes the role of state and indicates that democracy has been reduced to a consensual administrative apparatus under the control of a stronger state. This process of indolent assertiveness among citizens has become a very ordinary, micro-process that absorbs elements of disagreement and autonomy into the state’s regulatory structure. That is to say, democracy has evolved into a post-democracy regime deprived of the political agency of citizenry, in which one sole actor performs on stage in front of a dormant mass of passive spectators. The alarm is that citizens are not detecting the relentless progression of their political disempowerment that may further push citizenry towards self-dissolution. The possible consequence is that with democratic ideals seriously imperiled and a public sphere devitalized, a continually marginalized citizenry will try to reclaim its political role with sudden explosions of violence.

Participatory governance engages people who are affected by a problem in the process of solving it. A participatory-governance approach to inner-city crime, for example, might include local residents in the process of designing a community-policing program. In recent decades, courts, legislatures, administrative agencies, and other institutions all have used participatory-governance approaches to tackle complex problems of law and public policy. Some herald the potential for participatory-governance schemes to improve legal and policy outcomes, increase institutional accountability, empower marginalized groups, and further democratic ideals of self-determination and equality. Yet participatory-governance schemes can also promote the capture of public power by private interests, the evasion of accountability, and the deepening subordination of already marginalized communities. This is especially true when marginalized stakeholders are unable to meaningfully participate in the process.This article seeks to articulate a conceptual framework for better promoting meaningful participation by marginalized stakeholders. To do so, it draws a seemingly unlikely parallel between participatory governance systems and business transactions. Applying the framework to both court-based and non-court-based systems, it analyzes how various mechanisms might be used to promote meaningful participation by marginalized stakeholders. It concludes that where such participation cannot actively be promoted, the participatory approach should be rejected in favor of other problem-solving methods.

Democracy embraces the spontaneous presentation of the individual’s voice. Be it Rousseau’s inward self, Tocqueville’s grassroots citizen, Habermas’s deliberating citizen, or Foucault’s self of “fearless speech,” democratic ideals regard the individual’s speaking in her own voice as a central element. However, rarely discussed is the feasibility of this ideal. Are we not speaking in the inauthentic voice of others rather than in our authentic voices? Posing this question, my paper explicates the fundamental problem in the democratic practice of our opinion-presentation. While many thinkers are worried about citizens’ conformism, their worries do not stop them from embracing the ideal of authentic voice. This is because they detect the sources of the problem in exogenous factors such as oppression and distorted communication. Against this ideal, I show that our speaking in the voice of others is the endogenous problem: we spontaneously re-present others when we think we present ourselves. To reveal this endogeneity, my paper draws upon the insight of critic of democracy, Gustave Flaubert. His writings show how we, under democracy, speak cliches, i.e. spontaneously speak in the voice of others. My exploration reveals Flaubert as one of the most radical critics of democracy. Moreover, being “radical,” he is not an anti-democrat as is usually seen. Drawing upon his insight, my paper offers an alternative defense of democracy that acknowledges our making cliches.

Deliberative democratic theories contend that, prior to the making of collective decisions, there ought to be deliberation among those affected by the decision, where deliberation is understood in some sense as interpersonal discussion. A deliberative theory imposes moral demands upon citizens: each citizen ought to remain open to her co-citizens’ views (that is, to listen attentively and try to understand them); and she should be willing to change her view or preferences in light of what she learns from the discussions. Deliberative perspectives dominate modern democratic theory. Yet most deliberative democrats undervalue law and neglect to address its substantial and varied influences on political practice. Since the 1960s, the legalisation of politics has deepened. “Political law” now extensively regulates democratic procedures. In this paper (part of an ongoing “Law of Deliberative Democracy” collaborative project) I consider whether institutional designers can help to realise deliberative democratic ideals through carefully tailored law, or alternatively whether law has a generally anti-deliberative role to play in democratic politics. Much turns on this question. If the latter is more likely, then given political law’s modern spread throughout democratic practice, the general feasibility of achieving deliberative democratic ideals appears doubtful.The paper focuses on what I call “the coercion problem.” A hallmark of deliberative theory is that nothing should compel decision-makers to reach a particular decision except rational persuasion. But the aim of law is often precisely to coerce: to use the force of the state to pressure a law’s subjects to conform to mandates and restrictions. According to Habermas, law might coerce only up to a point. But political law uniquely influences deliberation not just by creating broad institutional foundations, but additionally by establishing a fine matrix of political rules. The problem of legal coercion is potentially fatal to deliberative democracy. Yet I conclude on a note of cautious optimism: that certain modes of regulation may mitigate coercion, such as Raz’s “guidance,” and Sunstein, Anderson and Pildes’ “expressivism.”

Poland was divided among three empires — Russia, Austria-Hungary, and Prussia — for over a century until 1918. The partition brought about divergence in culture, institutions, and economic development. We use spatial regression discontinuity to examine, which empire effects are persistent. We find that differences in incomes, industrial production, education, corruption, and trust in government institutions disappeared with time as they were smoothed by economic forces and policy intervention. In contrast, differences in intensity of religious practices and in beliefs in democratic ideals, i.e., democratic capital, persist presumably via inter-generational within-family transmission. Differences in railroad infrastructure built by empires during industrialization persisted to this day. Cultural empire legacies have an effect on the political outcomes in contemporary Poland.

European integration represents a unique and exemplary instance of supranational governance that presided over the resurrection of a ruined continent into the world’s largest economic area and sustained the longest period of peace in its history. Central to this unprecedented period of peace and prosperity enjoyed by Europe’s states has been the role of European integration as both an agent and guarantor of democracy on the continent. The prosperity that went with tying the continent’s states into a broad and seamless market economy, combined with their development of intersectoral modes of collaboration and evolution of extensive and robust welfare states so that this prosperity could be broadly shared within them, set the basis for the emergence of stable and vibrant democracies in countries that, only two decades before, had seen their democratic systems collapse in the face of ideological extremism and political polarization. In turn, beginning in the 1980’s and particularly following the collapse of the Iron Curtain in 1989-90, the European project served as a powerful vehicle for the spread of democratic ideals and institutions across the continent.The present European sovereign debt crisis, however, has provided an unprecedented test of Europe’s democratic vocation and resolve, signaling the resurgence of the forces of nationalism that the European project had formerly done so well to curb but which now, in its current guise and orientation, it increasingly appears to be fueling. Specifically, by tracking an increasingly neoliberal course from the 1980’s on, the integration process has progressively undone the systems of regulated capitalism that restored European nation states to economic health and democracy following the collapse of the liberal order in the 1930s and ‘40s, and which in turn underlay and impelled their confederal cooperation. On the contrary, by privileging economic rationality over communal values and market efficiency over social goals, European integration since the 1980s has fatefully undermined the functional and normative bases that made European cooperation possible in the first place. As such, the current Eurozone crisis can be read, both in its manifestations and the failure of the responses that have been crafted to it, as the culmination of and microcosm for the dismantlement of the interventionist guarantees of the democratic nation state underpinning European integration.

Consistent with democratic ideals, evidence-based policymaking (EBP) seeks to elevate facts over politics. This article proposes a new EBP Federal Rule of Civil Procedure requiring the contemporaneous coding of cases filed on the federal courts’ online case management/electronic case filing system (CM/ECF) for key outcome variables. The next generation CM/ECF is currently in the design phase. Only a new Federal Rule can provide the uniform implementation necessary to create a comprehensive, reliable, and inexpensive descriptive dataset for evidence-based federal civil rulemaking.Federal civil rulemaking possesses institutional and technological characteristics ideal for EBP. Institutionally, federal civil rulemaking utilizes a unique expert committee structure insulated from, yet accountable to, popular democracy. The present Advisory Committee values empirical research and takes its time to evaluate proposed Rules amendments. Furthermore, it has an independent, professional researcher, the Federal Judicial Center (FJC), on call. The increasing popularity of empiricism in the Academy also facilitates additional research. Technically, CM/ECF makes accurate coding more likely. When party counsel file a document in CM/ECF, the person with the most firsthand knowledge of the filing codes it under the threat of Rule 11 sanctions and under the scrutiny of opposing counsel and the court. This descriptive dataset must be indisputably objective so that all sides in a policy debate will accept its accuracy. Even if opposing sides disagree over its interpretation, the dataset can serve its public purpose by providing a shared baseline upon which to ground policy debates.

Americans fail to meet the democratic ideal of an informed electorate, and the consequences of this political ignorance are a topic of significant scholarly debate. In two independent settings, we experimentally test the effect of political information on citizens' attitudes toward the major parties in the U.S. When uninformed citizens receive political information, they systematically shift their political preferences away from the Republican Party and toward the Democrats. A lack of knowledge on the policy positions of the parties significantly hinders the ability of low-socioeconomic-status citizens to translate their preferences into partisan opinions and vote choices. As a result, American public opinion—and potentially election results and public policy as a result—is significantly different from the counterfactual world in which all voters are informed.

Fair measure of a constitutional norm requires that we consider whether the scope of the norm can be broader than its enforcement. This query is usually answered in one of two ways: some constitutional theorists argue that the scope and enforcement of the norm are co-terminous, while others argue that the norm maintains its original scope and breadth even if it is underenforced. This Article examines the right to vote when it exists as a constitutional norm and is underenforced by both judicial and non-judicial actors. First, I adopt the position that the scope and meaning of a constitutional norm can be greater than its enforcement. Second, I rely on the argument that underenforcement results not only from judicial underenforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to the fullest extent.By employing these two principles, this Article analyzes the underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. To illustrate this point, I use Ghana, West Africa - a newly designated “maturing democracy” - as a case study. In particular, I examine Ghana’s prior underenforcement of the constitutional norm of universal adult suffrage through its failure to allow incarcerated citizens to vote. This underenforcement created what I term a “systemic electoral inconsistency.”A systemic electoral inconsistency occurs when a nation’s electoral laws, systems, policies, or practices are at odds with a nation’s democratic ideals. When a systemic electoral inconsistency manifests as a derogation of the constitution, it becomes a matter of constitutional underenforcement. I argue that the underenforcement of constitutional norms, especially in maturing democracies, results from the entrenchment of illiberal extra-constitutional norms among judicial and non-judicial actors despite the existence of a liberal constitution within a democracy. Fair measure of the right to vote should be guided instead by the democratic ideals that define the norm, not the systemic electoral inconsistency that results from its underenforcement. In other words, fair measure of the right to vote is as broad as the democratic ideals that animate the underlying norm. Ghana’s recent judicial triumph over administrative underenforcement of the right to vote both reinforces the fair measure of a fundamental right and instructs maturing - and mature - democracies that underenforcement is not irremediable.

The Internet allows citizens to comment on public affairs with an amplified and unfiltered voice, creating an open, community-based culture where robust debate flourishes. However, many of the ideals and practices of participatory culture clash with the traditional legal culture as it exists in the United States. This cultural conflict can be seen in emerging narratives, in the form of web blogs and lawyer emails that go “viral,” in which lawyers comment on the lack of humanism within big law firm hiring and firing practices; expose the alienating work environments experienced by low-level contract attorneys; or criticize judges who show hostility toward criminal defense attorneys. From a critical standpoint, these narratives tell the story of a broken legal profession, implicitly arguing that the liberal humanism that the profession supposedly embodies does not apply to all lawyers. These stories are, in effect, structural critiques of the profession. Nonetheless, these missives have the potential to run afoul of ethical rules and professional norms that prohibit attorneys from impugning the integrity of the judiciary and the legal profession. Because these narratives provide a valuable critique of the profession, however, ethical rules or professional norms should not operate to shut these stories down. As the democratic ideals inherent in participatory culture become more deeply embedded in our society, the legal profession should also evolve and embrace a more pluralistic and unconstrained approach toward professionalism. Part I of this Article describes the characteristics of participatory culture relevant to the legal profession. Part II explores the emerging format of the online lawyer narrative and Part III analyzes the professionalism issues raised by these new narratives.

Many studies have attempted to identify the factors that contribute to the institutionalization of democracy in Africa. Two of the most important of these factors are a robust civil society, and a democratic culture nurtured and supported by widespread dissemination of information, a free and independent media, and the belief in the ability and freedom of individuals to contribute to public discourse. Copyright law can be used to enhance the realization of these democratic ideals. Each African country should adopt a copyright regime that, given the country's collective historical experiences and specificities, can enhance the development of a robust civil society and a democratic culture, both of which can enhance the introduction of democracy, its deepening, and its institutionalization.

The last few years have witnessed a minor explosion literature in political theory seriously considering the problems of designing constitutions in the light of democratic ideals, including works with both domestic and trans-national ambitions. This paper explores the theses that a) three importantly different methodological approaches can be discerned in the literature, b) that the three approaches have complementary strengths and weaknesses, and c) that a modified approach can draw on the strengths while avoiding most of the weaknesses. Serially examining and critically evaluating ‘imaginative institutional reaction’ (e.g., Levinson (2006) or Sabato (2007)), ‘rational optimization’ (e.g., Vermeule (2007)), and ‘Aristotelian comparativism,’ (e.g., Lutz (2006)), the paper concludes that a comparative approach is recommended, but that it ought dispense with an Aristotelian orientation in favor of reference to the ideal of constitutional democracy understood as regulative ideals.

The military coup of August, 2005 in Mauritania that removed President Taya from power could be characterized as presenting the prospect of the fourth era of constitutionalism in the former French colony. This paper examines the three previous constitutional eras with specific critiques on the various constitutions that existed since the country’s independence in November 28, 1960. The analysis is important insofar as it warns of the consequences that are associated with the failures of constitutional totalitarianism in addition to stressing the importance of elaborating a lasting constitution that adopts liberal and democratic ideals.

Perhaps the one completely uncontested truth in the shared public ideology of American politics is that an election campaign ought to be a serious occasion in the life of a democratic polity, a time when citizens reflect maturely on the great public issues of the day. On this view, the ultimate purpose of election campaigns is to offer voters and candidates a meaningful opportunity for deliberation and persuasion. Of course, the typical modern American election campaign does not seem seriously reflective and deliberative so much as shallow and unengaging. Reasoned persuasion seems to play a minor role, if that. The paper asks whether this gulf between American political ideals and reality might have its roots in any kind of flaw in our legal institutions. Do we have, that is to say, a constitutional infrastructure well suited to summoning forth the kind of electoral politics to which we aspire? The paper pursues this question through a close institutional analysis of the federal constitutional jurisprudence of ballot access, public financing of presidential campaigns, the associational rights of political parties, and the giving and spending of money in election campaigns. This analysis reveals that although the American constitutional regime pays emphatic lip service to the ideal of reasoned persuasion in elections, its actual institutional arrangements in fact presuppose just the opposite - election campaigns that are thin rather than thick, that are aggregative rather than deliberative, that are aimed at counting political preferences, not creating them. The paper concludes by examining briefly some of the implications of this disjunction between our democratic ideals and practices for our conceptions of democratic legitimacy, our aspirations for better quality campaigns, our notions of the venues in which democratic politics is actually conducted, and some important scholarly critiques of electoral regulation.

Lawrence Lessig is only the most prominent of student of cyberspace who worries about the increasing privatization of Internet control. Current legal challenges, from the Internet privacy case of Intell v. Hamidi to a consent order concerning Passport, Microsoft's online identification system, attest to a vigorous struggle over private Internet control versus public Internet access. Professor Crawford argues that, in order to assure widespread access, both as a means of serving democratic ideals and providing equal opportunity to Internet resources, it is appropriate to turn to the property law principle of public accommodation. In light of recent legal history scholarship documenting the post-Civil War narrowing of the antebellum common law "right of access" into what we today think of as the law of public accommodation, Professor Crawford suggests that treating the various layers of the Internet - its physical architecture and cables, its code and its content - as places of public accommodation is consistent with the earlier, more egalitarian common law tradition. Given the reach, influence and potential of the Internet, this more expansive approach should, he maintains, be applied to regulation of today's cyberspaces. While conceding that conceptual problems exist in order to conceive of Internet "space" as equivalent to real space, the Article nonetheless contends that a focus on the right of access and a corresponding duty to serve can resolve any hesitation in approaching regulation of the Internet as a place of public accommodation. It therefore outlines various approaches to the regulation of the Internet's parts as places of public accommodation, both in light of decided case law (mostly in the disabilities rights context - the most active area of public accommodation jurisprudence today) and contemporary property theory that insists upon a multi-faceted, entitlement-based, distributive justice approach to ownership.

The idea that cyberspace should be presumptively self-governing has resounded in thoughtful scholarship. It has also precipitated the recent, dramatic withdrawal of the United States government from significant portions of Internet administration and regulation. This Article critiques a central prong of the argument for cyberspace self-governance: the claim that a self-governing cyberspace would more fully realize liberal democratic ideals than does nation-state representative democracy. That "cyberian" claim, in turn, has two parallel components: first, that the Internet creates possibilities for "bottom-up private ordering" that are a superior form of liberal democracy, and second, that a truly liberal nation-state must grant considerable autonomy to cyberspace "communities." These claims of liberal perfectionism and community autonomy pose an intriguing challenge to traditional democratic theory. But I believe that they ultimately fail. I argue, indeed, that an untrammeled cyberspace would prove inimical to the ideals of liberal democracy. It would free majorities to trample upon minorities and would serve as a breeding ground for invidious status discrimination, narrow casting and mainstreaming content selection, systematic invasions of privacy, and gross inequalities in the distribution of basic requisites for citizenship in the information age. Accordingly, I argue, that selective state regulation of cyberspace is warranted to protect and promote liberal ideals. I maintain as well that in the absence of regulation by a democratic state, cyberians would be forced to try to invent a quasi-state institution to legislate and enforce meta-norms governing critical aspects of cyberspace organization and operation. Even if cyberians were successfully to establish such an institution, it would, at best, suffer from much the same democratic deficit as, according to cyberians, characterizes nation-state representative democracy.

Although regulations resulting from legislative mandates often have no direct fiscal impact, they pose real costs to consumers as well as businesses. Regulations aimed at protecting health, safety, and the environment alone cost over $200 billion annually - about half as much as outlays for federal discretionary programs. Yet, the economic impacts of federal regulation receive much less scrutiny than discretionary programs in the budget. In 1996 Senator Ted Stevens added an unprecedented amendment to the Omnibus Consolidated Appropriations Act of 1997 that could have a major impact on how regulations are assessed in the future. That amendment requires the director of the Office of Management and Budget to provide Congress with estimates of the total annual benefits and costs of federal regulatory programs and estimates of the benefits and costs of individual regulations. That is the first statute to mandate such an accounting. The purpose of this primer is to lay out the case for such regular accounting beyond the steps mandated by the Stevens Amendment. In particular, we hope to enable policymakers to make better use of available economic tools as they develop more reliable and accessible information on the benefits and costs of regulations. We conclude that the federal regulatory process is in need of repair. Part of what is required is an improved accounting statement conveying the benefits and costs of regulation. The Office of Management and Budget, the Council of Economic Advisers, or both organizations should produce a unified economic regulatory accounting statement that systematically characterizes the benefits and costs of federal regulation on an annual basis in a form that would be accessible to a wide audience. The report would provide information to the public, interest groups, and legislators as they engage in debates about billion-dollar regulatory policies that are likely to affect all Americans. While some will undoubtedly object to any proposal to reform regulation, we see our proposal as relatively modest. It does not require that regulations pass a benefit-cost or cost-effectiveness test. It simply helps to make an arcane, unsystematic process more transparent and systematic by introducing a unified approach for analyzing and disseminating key information on the effect that regulatory policies have on consumers, businesses, the environment, and government entities. The changes we propose will help promote democratic ideals by increasing public awareness and raising the accountability of our elected officials. They should also improve regulatory policies by developing more effective and less burdensome regulations.