Constitutional Criminal Procedure

Constitutional Criminal Procedure

Legislation Tonja Jacobi LM207 312-503-1458 [email protected] northwestern.edu Classes 1&2: 1. Introduction to Legislation 2. Introduction to voting systems & procedures 3. Case study the Civil Rights Act 1. Introduction Legislation the course: a. Legislative process & statutory interpretation b. The age of statutes vs courts-focused bias of law school The Paradox of American Civic Illiteracy - Victoria Nourse One of the dirty little secrets of legal education today is that it teaches so little about so much democracy. There is no more basic activity of a lawyer than reading a statute. As the most prominent judges in the nation have explained, this is the heart of what it is to be a lawyer. Constitutional cases are few. Statutory cases are many. Legislation should rank as the first of all law courses, but it is often merely optional and left to students whim. First-semester curricula at the most prestigious schools, such as Harvard, Yale, Stanford, and Chicago, still steep their students in

vast amounts of ancient, superseded common law, leaving the entirely false impression that statutes are secondary and odd. This curriculum should seem more troubling since academics spend so much time, in constitutional law and elsewhere, discussing democracy. Even in the Supreme Court, where the people think the Constitution reigns, the vast body of the work is statutory, not constitutional, law. c. Constitutional and quasi-constitutional rights: e.g. ADA, Title VII, Title IX d. Theories of legislative process and interpretation e. How is legislation produced, and has this changed: http://legex.org/ 2. Voting systems and procedures Cycling, Social Choice, and the Arrows Impossibility Theorem: Suppose there are 3 judges in a hypothetical case regarding a recently passed health care law that forces employers to include abortion related services in the health care plans they provide their employees. Their preferences: 1 2 3

Strict scrutiny Dismiss Rational basis Dismiss Rational basis Strict scrutiny Rational basis Strict scrutiny Dismiss Rational choice vs Social choice 4 assumptions of rational choice: 1. that actors maximize their own utility that is, they choose efficient and effective means of achieving their goals; 2. that actors preferences are consistent and transitive that is,

that preferences follow a core logic that makes them predictable. In particular, if a person prefers a to b to c, that person can be taken to prefer a to c; 3. that understanding individuals preferences can explain collective outcomes, such as free riding, rent seeking and erection of barriers to entry; 4. that under conditions of uncertainty, individuals will maximize the expected value of the available options. Example: David Mayhew, The Electoral Connection and Congress (1974) Cycling Dismiss* v. Rational Basis Strict scrutiny* v. Dismiss Strict scrutiny v. Rational Basis*

Arrows General Impossibility Theorem No aggregation system exists that can satisfy these criteria: 1. Universal admissibility each person must be able to rank all of their options as they wish, and no one can tell anyone how to rank his or her options; 2. Monotonicity individual preference orderings translate to positive or neutral changes in the aggregate ordering; 3. Independence of irrelevant alternatives that is, an addition or subtraction of some non-preferred outcome should not change what is the preferred outcome; 4. Non-dictatorship that is, the preferences of one individual do not trump all others. So? Shepsle and Bonchek: The very fact that some social situations produce either incoherence [i.e., irrational outcomes] or unfairness means that it will be possible for clever, manipulative, strategic individuals to exploit this fact. Electoral rules Assume that 55 voters who each must choose among 5 candidates: First choice Voting Group 1

Voting Group 2 Voting Group 3 Voting Group 4 Voting Group 5 Voting Group 6 N=18 N=12 N=10 N=9 N=4 N=2 McReynolds

Hughes Jackson Rehnquist Marshall Marshall Rehnquist Marshall Hughes Jackson Hughes Jackson Marshall

Rehnquist Marshall Marshall Rehnquist Rehnquist Jackson Jackson Rehnquist Hughes Jackson Hughes Hughes

McReynolds McReynolds McReynolds McReynolds McReynolds Second choice Third choice Fourth choice Fifth choice What is the effect of: plurality voting, plurality runoff, sequential runoff/preferential voting, Borda count, round-robin tournament? Electoral rules, cont. Borda count McReynolds:

Hughes: Jackson: Rehnquist: Marshall: 4(18) + 0(12) + 0(10) + 0(9) + 0(4) + 0(2) = 72 0(18) + 4(12) + 3(10) + 1(9) + 3(4) + 1(2) = 101 1(18) + 1(12) + 4(10) + 3(9) + 1(4) + 3(2) = 107 3(18) + 2(12) + 1(10) + 4(9) + 2(4) + 2(2) = 136 2(18) + 3(12) + 2(10) + 2(9) + 4(4) + 4(2) = 134 Round-robin entitlement McReynolds Hughes Jackson Rehnquist Marshall McReynolds

- 18 18 18 18 Hughes 37 - 16 26 22 Jackson

37 39 - 12 19 Rehnquist 37 29 43 - 27 Marshall

37 33 36 28 - Theoretical models 1. Proceduralist theories The legislative process entails many procedural hurdles, to prevent control of government by factions and to assure deliberative decision-making 2. Pluralist theories The legislative process is a transaction between those demanding statutes (interest groups) and those supplying them (legislators) 3. Institutionalist models The legislative process and its implementation reflect the dynamic equilibrium of interacting institutions 2 Influential models i. The Wilson-Hayes transactional model

I. Majoritarian politics: distributed benefits and distributed costs. II. Entrepreneurial politics: distributed benefits and concentrated costs. III. Client politics: concentrated benefits and distributed costs. IV. Conflictual interest group politics: concentrated benefits and concentrated costs. FYI: David Haddock, Tonja Jacobi, & Matthew Sag: League Structure & Stadium Rent Seeking the Antitrust Role Revisited, 65 FLORIDA LAW REVIEW 1 (2013) ii. Madisons Republican theory: the deliberative value of process Background to the CRA Gerald N. Rosenberg, The Hollow Hope (1991) Same for voting (VRA) What about catalyzing effect? Reflecting public opinion? Case study: Civil Rights Act 1964

Presidential influence Lobbying groups, including clergy & civil rights Legislative committees Procedural death traps Procedural differences between the chambers FYI: Tonja Jacobi & Jeff Vandam: The Filibuster and Reconciliation: The Future of Majoritarian Lawmaking in the U.S. Senate, 47 UC DAVIS L. Rev. 261-342 (2013) CRA Interpretation Griggs v. Duke Power Co (1970) a 1: discrimination in hiring, discharge, compensation a 2: actions that segregate or classify to deprive of opportunities Positive Political Theory (PPT) models P XO

F XC C SQ P XC F(SQ) XO F SQ C C C F

F XC/O * V(SQ) V SQ V SQ Committee unconstrained if closed, semiconstrained if open P P Committee semi-constrained if closed, more constrained if open Committee semi-constrained, because the president opposes change

Committee fully constrained, because president and V oppose change A.I, s7 Game continued Without judicial review With judicial review

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