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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.

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

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.