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Americans face increasingly stark choices each presidential election and a growing sense that our government can't solve the nation's most urgent challenges. Our eighteenth-century system is ill suited to our twenty-first-century world. Information-age technology has undermined our capacity to face common problems together and turned our democracy upside down, with gerrymanders letting representatives choose voters rather than voters choosing them. In Parliamentary America, Maxwell L. Stearns argues that the solution to these complex problems is a parliamentary democracy. Stearns considers such leading alternatives as ranked choice voting, the national popular vote, and congressional term limits, showing why these can't solve our constitutional crisis. Instead, three amendments—expanding the House of Representatives, having House party coalitions choose the president, and letting the House end a failing presidency based on no confidence—will produce a robust multiparty democracy. These amendments hold an essential advantage over other proposals: by leaving every member of the House and Senate as incumbents in their districts or states, the amendments provide a pressure-release valve against reforms threatening that status. Stearns takes readers on a world tour—England, France, Germany, Israel, Taiwan, Brazil, and Venezuela—showing what works in government, what doesn't, and how to make the best features our own. Genuine party competition and governing coalitions, commonplace across the globe, may seem like a fantasy in the United States. But we can make them a reality. This rare book offers an optimistic vision, explaining in accessible terms how to transform our troubled democracy into a thriving parliamentary America., https://digitalcommons.law.umaryland.edu/books/1140/thumbnail.jpg

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.” The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not apply; (2) how it applies in proper cases; and (3) the precedential status of narrowest grounds opinions in the Supreme Court. Individual Supreme Court Justices capture discrete doctrinal elements; none convey a general theoretical understanding of the rule’s scope and meaning. In Ramos, the more recent of the two cases, six Justices invite lower courts to treat fractured Supreme Court cases as overruling past majority opinions. Three Justices convey that a single Justice cannot control on narrowest grounds. Two Justices treat narrowest grounds opinions as precedent in the Supreme Court. Each proposition is in tension with observed behaviors in other cases even in the Ramos term. In June Medical Services v. Russo, Chief Justice Roberts alone issued a controlling narrowest grounds opinion, with none of the Justices raising a fuss. By declining to join Roberts’s opinion, the four liberal Justices ensured a fractured ruling, thereby preserving a broader 2016 abortion precedent. In Bostock v. Clayton County, the same cohort joined Justice Gorsuch’s strained textualist construction of Title VII, forging a majority embracing sexual orientation and transgender status within the meaning of sex. These rulings convey that a single Justice can control under Marks and that majority opinions hold precedentia

This accessible volume integrates wide-ranging economic methodologies with a vast array of legal subjects. Coverage includes the first-year law school curriculum along with institutions and doctrines comprising the core foundation of upper level legal study. Dedicated chapters introduce neoclassical economics, interest group theory, social choice, and game theory, and the book intersperses alternative methodological insights. The analysis synthesizes these methodologies with modern and classic case law, other legal materials, and policy discussions inspired by current events. Ideal for a law school seminar or capstone course, this unique volume is also perfectly suited for business school courses on legal methods and public policy. Professors will find a rich array of materials adaptable to varying pedagogical styles and substantive areas of emphasis. Students exploring these materials will emerge with a deeper understanding of law and economics and a greater appreciation of our lawmaking institutions., https://digitalcommons.law.umaryland.edu/books/1125/thumbnail.jpg

In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict scrutiny or rational basis, based on whether the Court claims a real-sex difference or an overbroad gender-based generalization.The tiers-of-scrutiny doctrine has evolved from two to three formal tiers, yet a closer reading suggests five applied tiers. As a basis for prediction, the tiers are inverted, producing the following counterintuitive sequence: strict scrutiny, rational basis plus, intermediate scrutiny, strict scrutiny lite, and rational basis. The result has been doctrinal confusion, a lack of predictability, and calls by leading scholars and jurists for abandonment or fundamental reform. This Article offers a theoretical account for why tiers of scrutiny should not be jettisoned and why the existing scheme, as applied to race, sexual orientation, and gender, has produced anomalous — perhaps even disingenuous — applications. It further demonstrates how a modest re-conception operating within the general framework of existing tiers can greatly simplify applications, avoid the most critical anomalies, and thereby improve doctrinal predictability and coherence.

This is the only course book specifically designed to instruct law students in the discipline of public choice. The book provides a comprehensive, but nontechnical, overview of interest group theory, social choice theory, and game theory (along with elementary price theory), and ties these concepts to a wide range of topics in both public and private law. The book contains chapters devoted to each set of methodological tools and to specific institutional settings: legislatures, courts, executive branch (and bureaus), and constitutions., https://digitalcommons.law.umaryland.edu/books/1019/thumbnail.jpg

In Spokeo v. Robins, the Supreme Court granted certiorari to address the following question: Does Congress have the power to confer standing upon an individual claiming that a privately owned website violated its federal statutory obligation to take specified steps designed to promote accuracy in aggregating and reporting his personal and financial data even if the resulting false disclosures did not produce concrete harm? This somewhat arcane standing issue involves congressional power to broaden the scope of the first of three constitutional standing requirements: injury in fact, causation, and redressability. Although the case does not directly address the prudential standing elements—no right to enforce the rights of others or to litigate diffuse harms—this Essay will demonstrate that along with the remaining constitutional elements of standing, the analysis also implicates these prudential barriers. Spokeo presents a valuable opportunity to solidify standing doctrine’s proper constitutional foundations. This Essay demonstrates that properly understood, standing doctrine is designed to preserve and protect congressional primacy in lawmaking. This includes deferring to Congress’s policy decision concerning who has standing to enforce its statutes.

Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence implicitly rests on a set of assumptions that can best be cast in spatial terms. This includes assuming that debated positions respecting constitutional issues, along with the views of Supreme Court justices, rest along a common liberal-to-conservative ideological dimension. Political scientists who embrace the Attitudinal Model are more explicit in this framing, which is itself a premise of those who code the Supreme Court Database upon which much quantitative work in the field of Judicial Politics takes place. The assumption of a single analytical dimension is apt for much work on the Supreme Court and for many bodies of substantive constitutional doctrine. And yet, that approach suffers inherent limitations. First, Supreme Court decision-making rules, both within and across cases, expose problems of dimensionality. Second, important Supreme Court doctrines reveal embedded problems of dimensionality. Third, and finally, throughout the Supreme Court’s history, positions deemed liberal (or conservative) in one period have become conservative (or liberal) in the next, once more suggesting a long-standing feature of dimensionality throughout our jurisprudential history. Social choice proves uniquely suited to explaining these important features of constitutional law. After introducing the discipline of constitutional law and its relationship to social choice, this Article provides three illustrations of how social choice analysis deepens our understanding of important substantive areas: exposing dimensionality within Supreme Court decision-making rules, within separation of powers doctrine, and in historical shifts in the liberal and conservative valence of once-prominent jurisprudential positions. Each discussion will necessarily be brief, but I will refer interested readers to additional sources that explore these examples and themes in greater dept

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a series of works employing social choice theory, I have presented standing doctrine as furthering a private-rights adjudicatory model. In separate high-profile works, Professors Heather Elliott and Jonathan Siegel have criticized this account, claiming it rests on the “great myth” that the judicial lawmaking is inextricably tied to dispute resolution, with precedent creation merely an incidental byproduct. Instead, Elliott and Siegel contend that the federal judiciary, including especially the Supreme Court, has the primary responsibility of announcing constitutional rules, with case resolutions a justificatory vehicle for performing that task. Siegel further maintains that if, as the social choice model suggests, standing raises the cost to ideological litigants of timing the path of case law to influence developing doctrine, it is no more effective than tossing a “few grains of sand” into the gears of the judicial-lawmaking apparatus. In this Article I respond to these critiques and defend the social choice analysis of standing and the private-rights model on which it rests. First, these and other public-rights scholars fail to appreciate that the private-rights model enhances the normative legitimacy and durability of precedent. If the justification for creating precedent is the present

This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, mootness, and, most notably, standing. Conversely, within a private-rights adjudicatory model, judicial rulings, however important, are legitimated by the need to resolve actual cases or controversies presumptively arising from circumstances beyond the claimant’s control. The public-rights model produces an unintended consequence for those seeking durable constitutional precedent. To the extent that the timing of constitutional litigation is driven by the happenstance of ideological sympathies of deciding jurists, the normative justification for affording the resulting precedent durable status is compromised once those conditions change, favoring the other side. By contrast, the private-rights adjudicatory model makes constitutional precedent more costly to obtain on all sides, thereby enhancing the normative foundation for affording precedent durable status. The analysis holds important implications for several notable bodies of law, including the historical status of Brown v. Board of Education; the stare decisis analysis in the jointly authored plurality opinion in the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey; and Supreme Court doctrine concerning agency deference rules.

Legal scholars, economists, and political scientists are divided on whether voter initiatives and legislative referendums tend to produce outcomes that are more (or less) majoritarian, efficient, or solicitous of minority concerns than traditional legislation. Scholars also embrace opposing views on which law-making mechanism better promotes citizen engagement, registers preference intensities, encourages compromise, and prevents outcomes masking cycling voter preferences. Despite these disagreements, commentators generally assume that the voting mechanism itself renders plebiscites more democratic than legislative lawmaking. This assumption is mistaken. Although it might seem unimaginable that a lawmaking process that directly engages voters possesses fundamentally antidemocratic features, this Article defends that very claim. To do so, this Article constructs a set of comparative analytical benchmarks based upon an assessment of the democratic features of representative legislatures and the antidemocratic features of appellate judiciaries, and employs those benchmarks to evaluate direct democracy. This analysis reveals two critical yet overlooked features of direct democracy: First, direct democracy incorporates many of the theoretical and practical difficulties associated with judicial review. Second, direct democracy risks producing outcomes that embed cycling preferences by eliminating voter choice over the policymaking institution itself and over the range of policy matters combined for simultaneous negotiation. The core insight that emerges is not merely that common understandings about direct democracy are misguided; rather, it is that recognizing the antidemocratic features of direct democracy proves essential in determining the sorts of public policy questions that are, or are not, suitable to this form of policymaking.

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come. Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, as set forth in Lopez v. United States, permits the individual mandate. This Article approaches the constitutionality of that provision from a novel perspective, one that proves essential in applying past Commerce Clause decisions, including Lopez, to the PPACA and in appreciating the real stakes involved in upending the individual mandate. By analyzing the Court’s Commerce Clause jurisprudence through the lens of game theory, we expose common features of games that have resulted in limiting state powers on the dormant side of the Commerce Clause doctrine, and of sustaining and restricting congressional powers on the affirmative side. Applying such games as the “prisoners’ dilemma,” and “the battle of the sexes,” yields critical insights about the nature and limits of state and federal regulatory powers. Our game theoretical analysis shows that while debates have centered on the role of the individual mandate in solving a micro-level separating game among low-risk individuals who do not purchase insurance and high-risk individuals who cannot afford it, a more compelling account focuses on the Act’s role in solving a macro-separating game played among the states. By comparing the PPACA to several important policy splits among states- public accommodations laws, abortion funding, the death penalty, civil

Social choice studies the differing implications of the concept of rationality (or transitivity) for individuals versus groups under specified conditions and the significance of these differences in various institutional decision making contexts. This introductory chapter on social choice for the Elgar Handbook on Public Choice (Elgar Publishing Company, Dan Farber and Anne O’Connell, editors), introduces the basic framework of social choice, considers the implications of social choice for various legal and policy contexts, and provides a framework for evaluating a range of normative proposals grounded in social choice for reforming lawmaking institutions. After a brief introduction, part II introduces the following concepts: cycling, the median voter theorem, the Condorcet criterion, path dependence, agenda setting, minimum winning coalitions, multipeakedness, dimensionality, symmetry and Arrow’s Theorem. This part then describes several notable voting protocols that have been offered in the literature to ameliorate identified deficiencies in aggregating collective preferences, including Borda Counts, Coombs Voting, Hare Voting (or Single Transferable Voting), Copeland Voting, Plurality Voting and Approval Voting. Part III presents prominent normative proposals advanced by legal scholars relying upon, or calling into question, the discipline of social choice, including proposals to change electoral voting procedures; to modify doctrines affecting judicial deference to legislative bodies; and to alter various voting protocols in legislatures and appellate courts, including most notably the Supreme Court. Part IV will rely upon social choice to present a framework for reassessing several of the normative proposals described in part III, along with some of the critical commentary. This part recasts social choice, and in particular Arrow’s Theorem, into a set of positive tools that can be used to respond to some of these proposals and to provide insights into how vario

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the new doctrinal limitations with the traditional broad scope of the post-New Deal Commerce Clause cases. This Article’s new game theoretical analysis satisfies these objectives by offering a compelling normative account of Commerce Clause doctrine and a framework for applying the new methodology to actual cases. The Rehnquist Court announced the new Commerce Clause doctrine in the 1995 decision, Lopez v. United States, which struck down the Gun-Free School Zones Act. The Lopez Court changed the longstanding test governing the scope of Congress’s Commerce Clause powers, set out in the infamous 1942 case, Wickard v. Filburn. While prior cases had used “economic” to qualify the effects that the underlying regulated activity had on commerce, the Lopez Court instead used economic to qualify the activity itself. In the 2000 decision, Morrison v. United States, the Court applied the non-economic activities test to strike down the civil remedies provisions of the Violence Against Women Act despite extensive Congressional findings. Most recently, in the 2005 case, Gonzales v. Raich, the Supreme Court applied this test to sustain the Controlled Substances Act’s complete ban on private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the Cali

In recent decades, legal scholars have devoted substantially greater attention to studying the origin and nature of stare decisis than to defining the distinction between holding and dicta. This appears counterintuitive when one considers, first, that stare decisis applies only to holdings of announced precedents, and second, that beyond problematic and rudimentary intuitions, the legal system has failed to develop meaningful definitions of these terms. While lawyers, legal scholars, and jurists likely assume that they can identify dicta when they see it, a careful analysis that categorizes the range of judicial assertions in need of proper characterization reveals that defining holding and dicta is more complex than the general trend of recent scholarship would suggest. In this Article, Professors Abramowicz and Stearns provide a comprehensive yet accessible framework for identifying the categories of assertions requiring classification as holding or dicta; a normative and positive framework for setting up a holding-dicta classification scheme; and, most importantly, a definition that resolves most if not all of the difficulties revealed in the course of their analysis. The authors develop a theoretical model that explores the nature and limits of stare decisis as a mechanism for constraining judicial behavior, and they explain the importance of clarity in the understanding of holding and dicta within a precedent-driven system of law. After critiquing the most influential definitions of holding and dicta, the authors offer and defend their own: A holding consists of those propositions along the chosen decisional path or paths of reasoning that are actually decided, are based upon the facts of the case, and lead to the judgment. A proposition in a case that is not holding is dicta.

In Ruling Majorities and Reasoning Pluralities, Professor Saul Levmore explores the "division of labor" between the various thresholds of agreement required for collective action - supermajority, simple majority, or plurality rule. His particular emphasis is on the choice between the last two options. To improve our understanding of this choice in various settings, Professor Levmore considers the relationship between two well-known contributions to the study of group decisionmaking, namely, the Condorcet Jury Theorem and the Condorcet Criterion, which have not generally been treated together. This essay explores the relationship between these two insights in the context of judicial decisionmaking. Counterintuitively, the essay demonstrates that while the Condorcet Criterion continues to hold great promise as a tool of decision in en banc appellate courts, the Condorcet Jury Theorem is most appealing in judicial contexts that appear less collegial and thus less like a jury. In contexts in which jurists engage in deliberation and in which they anticipate that their outputs will have precedential effect, the Jury Theorem has little if any role to play. In contrast, the Theorem might prove more useful in evaluating low-level judicial outputs or decisions that otherwise are not expected to be treated as precedent. Thus, common law trial court decisions and civil law court decisions are more likely to be useful benchmarks in a Condorcet Jury Theorem analysis. It is because such courts do not anticipate that their decisions will have the force of precedent that they are more likely to be derived from governing legal texts, and thus more prone to characterization of accuracy, than are judicial outputs that are driven by policy concerns and are generated with the understanding that they will be treated as precedent.

In the “U.S. Supreme Court Judicial Data Base: providing new insights into the Courts,” Professors Harold Spaeth and Jeffrey Segal provide a brief and valuable overview of the two Supreme Court databases, with a particular focus on how those databases might be of use to those with professional legal training, namely law professors, lawyers, and perhaps also judges. In this comment, I will describe what I consider to be the limitations, and uses, of such data for those of us trained in law, and who most likely will lack the rigorous social science background familiar to most present users of the databases.

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