Author Archive for michael-kang
Voting as Veto
posted by Michael Kang
It’s been great to guest blog at Concurring Opinions, but unfortunately for me, my stint here has come to a close. I’ve enjoyed it. Thanks to Dan Solove, Danielle Citron, and their colleagues for hosting me during the last couple months.
I thought that I would use my last post to introduce a work-in-progress, titled Voting as Veto (forthcoming early next year in the Mich. L. Rev.). The article began long ago with a simple observation: When my wife and I (pre-baby) had to decide where to go out for dinner, I realized that I rarely had an affirmative preference for a particular restaurant or type of food on a given night. Instead, I found myself acting almost exclusively on what I call “negative preferences,” or preferences against certain outcomes. I mainly preferred not to visit a particular restaurant or have a particular type of food on a given night. Besides the desire to reserve a veto against certain outcomes, I was reasonably indifferent most of the time about where to go otherwise. It struck me that this type of negative preference was probably common in more formal, less mundane contexts for voting that I study in my research. Although there are many forms of voting that implicitly account for negative preferences in various ways, I found very little in the legal and political science literature developing the notion of negative preferences, or systematically assessing a conception of voting as veto. Voting as Veto is my attempt at both.
In addition, I am currently working on a related essay that applies the insights of Voting as Veto to corporate shareholder voting, the subject of public attention in recent months. Unfortunately, I haven’t posted a draft of either piece on SSRN quite yet. Voting as Veto is further along and currently in the middle of the citechecking process, but as a result, it is in many pieces at the moment. However, I plan to post drafts as soon as I can, so please feel free to email me if you have any questions or comments. Thanks again.
September 22, 2009 at 5:43 am
Posted in: Corporate Law, Legal Theory, Politics
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Scandal and Conflict of Interest in Formula One
posted by Michael Kang
A major cheating scandal has erupted at the highest level of international auto racing. After an investigation by the Federation Internationale de l’Automobile (FIA), the ING Renault Formula One Team announced it does not dispute the FIA’s charge that the team illegally conspired with its driver Nelson Piquet, Jr. to aid his teammate Fernando Alonso’s victory at last year’s Singapore Grand Prix by crashing intentionally during the race. Piquet crashed on lap fourteen of the race, ending his day and requiring deployment of a safety car (race cars stack up in order, with passing prohibited) while stewards cleaned up the course. Piquet’s crash was incredibly well-timed for his teammate Alonso and vaulted Alonso to a race lead that he would never relinquish. Alonso had mechanical problems during qualifying and started the race in fifteenth position on a narrow street circuit where overtaking is difficult. Piquet’s crash came immediately after Alonso had pitted for fuel, but before the rest of the field had done so, and as a result, Alonso promptly assumed the race lead as the other cars pitted in turn during the caution period. The perfect timing of Piquet’s crash for another Renault driver was suspicious from the start: Safety cars are somewhat rare in Formula One, but Piquet’s crash occurred where the stewards couldn’t quickly remove his car, and what is more, Alonso’s race strategy to pit so early was unusual—most cars starting at the back of the field load up on fuel and pit as late as possible, while Alonso did the opposite in the improbable hope of exactly what happened.
Nothing would have come of suspicions about Alonso’s victory, except that Renault fired Piquet as a driver this August, about a year after the race. Immediately following his dismissal, Piquet launched a public campaign against Renault managing director Flavio Briatore and then confessed to the FIA that he had crashed intentionally at Renault’s direction. Piquet claims, and Renault no longer denies, that Briatore and Renault director of engineering Pat Symonds approached him before the race about whether he would be willing to crash intentionally early in the race. Piquet explains that he “was in a very fragile and emotional state of mind . . . brought about by intense stress due to the fact that Mr. Briatore had refused to inform [him] of whether or not [his] driver’s contract would be renewed.” As a result of this developing scandal, Briatore and Symonds have resigned, and it isn’t clear what penalties the FIA will apply against Renault and the various parties involved. The FIA disqualified McLaren-Mercedes outright from the constructor’s championship and levied a $100 million penalty following a similarly appalling scandal two years ago.
The additional wrinkle here is that the scandal features an astounding conflict of interest at its heart. Briatore, while acting as managing director of Renault, served also as Piquet’s professional manager through a separate company. In other words, Briatore sat on both sides of the table in Piquet’s dealings with Renault. To be candid, Piquet has always struck me as an immature, unsympathetic character living a charmed life in no small part because his father is a three-time Formula One champion as a driver. But a driver’s seat in Formula One is incredibly difficult to secure, and it isn’t surprising that even Piquet may have felt overwhelming pressure to compromise himself (as well as risk serious injury) for someone serving as both his personal representative and his boss at the same time. Indeed, Briatore’s conflict of interest is not unusual in the incestuous world of Formula One. Briatore’s company actually has a similar arrangement with Piquet’s replacement, Romain Grosjean, as well as some type of management relationship with virtually every F1 driver employed by Renault during the last decade, including Alonso. As far as I know, neither the FIA nor the Grand Prix Drivers’ Association requires certification for driver’s managers or representatives anywhere comparable to the standards set by the unions for professional athletes in American sports leagues. It appears that the Renault scandal may finally prod the FIA or World Motor Sports Council to action on the issue.
September 18, 2009 at 9:25 am
Posted in: Current Events, Legal Ethics
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The Informant!
posted by Michael Kang
It’s not often that I hear about a new Hollywood movie based on the facts of a case that I first encountered while clerking, but The Informant!, directed by Steven Soderbergh and starring Matt Damon, is just such a film. It tells the story of Mark Whitacre, a central actor in a case decided while I was clerking for my judge on the Seventh Circuit. Whitacre served as the key informant in a successful FBI investigation into price-fixing charges against Archer Daniels Midland Co. that sent top executives to prison. As my co-clerk Kevin Metz observed, the case featured the type of direct evidence of an agreement to fix prices that antitrust professors explain is almost never available in antitrust prosecution. Whitacre secretly recorded many hours of conversations with co-conspirators in the lysine industry over three years, all while bragging carelessly to others about his role as an FBI informant and embezzling millions from ADM under the FBI’s nose. During my clerkship year, we worked on a number of memorable cases, but United States v. Andreas probably featured the most colorful facts. Whitacre was a very odd and unpredictable personality who suffered from bipolar disorder, which Matt Damon plays up for comic effect in the movie.
September 11, 2009 at 12:51 pm
Posted in: Antitrust, Criminal Law, Movies & Television
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More on Campaign Finance Reform
posted by Michael Kang
As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.
I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.
September 9, 2009 at 6:30 am
Posted in: Constitutional Law, Current Events, First Amendment, Politics
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Football and Judicial Politics
posted by Michael Kang
My colleague Joanna Shepherd and I are working on a project analyzing judicial voting on election law cases in state court. Although there is a sophisticated literature about judicial politics and political influences on judges, there actually is little quantitative work looking at political influences on judges in explicitly political cases, such as election contests, redistricting, and ballot access questions. Thinking generally about judicial politics for this project gives me a different perspective on the state court review of the NFL suspensions of two players from the Minnesota Vikings.
Last September, the NFL suspended Kevin Williams and Pat Williams of the Minnesota Vikings for four games each after they failed drug tests. The two star defensive tackles, who together comprise Minnesota’s “Williams Wall,” tested positive for bumetanide, a prescription diuretic banned under the NFL collective bargaining agreement as a masking agent for steroids. After exhausting the appeals process with the NFL, the two Williams’ and the NFL Players Association challenged the suspensions in Minnesota state court.
Here’s the judicial politics angle: The Minnesota district court that heard the Williams’ claims issued a temporary restraining order last December immediately after the Williams’ final internal appeals with the NFL were rejected. The TRO postponed any suspension until the end of the 2008 season, which kept both Williams’ on the field and helped ensure Minnesota a playoff spot last year. The NFL removed the case to federal court, which then dismissed all but two state law claims and remanded those two claims back to state court. This summer, on remand, the Minnesota district court issued another TRO, blocking the NFL from enforcing its suspensions of the Williams’ until after the upcoming 2009 season. I don’t know enough about Minnesota labor law, the NFL collective bargaining agreement, or the relevant preemption issues to assess the state court TROs that helped both Williams’ postpone their suspensions for almost two full seasons, but one commentator who considered these issues noted that even the issuing judge expressed doubts about the likelihood that the Williams’ claims would prevail on the merits, and at least one Vikings blogger suspected a home-court advantage for the Williams’ on their legal claims.
Of course, I have no real idea whether the Minnesota judge in this case was consciously or subconsciously affected by the possible political consequences of denying the TROs. I have little reason to doubt the integrity of this judge in particular, who I assume has nothing but the best intentions. But it might be reasonable to wonder whether a state judge in his position, who must run for re-election to keep his job, could be influenced by the prospect of hometown football fans unhappy that a judge has effectively sidelined their star players for a quarter of a season. My colleague Joanna Shepherd concludes from her research that state judges are routinely re-elected unless they risk doing something controversial and attract negative publicity. Whether or not this particular judge was consciously affected by the possibility, there’s no doubt that denying the latest TRO and putting Kevin and Pat Williams on the sideline for the beginning of the season, right after the Vikings stirred up fan excitement by signing Brett Favre as their new quarterback, would’ve attracted lots of negative attention. If nothing else, this case offers fed courts professors a very salient example for discussing the risk of a home-court advantage in state court and a foreign defendant’s interest in removal to federal court.
Thinking along the same lines, Gregg Easterbrook, an astute NFL commentator (and brother of Frank), suggested that former NFL wide receiver Plaxico Burress might have fared better in his recent gun possession case, if he had rallied local football support to his side by re-signing with the New York Giants immediately before trial. As Easterbrook put it, “Had Burress remained a Giant, he would have had the most popular organization between Washington and Boston in his corner, and it’s simply human nature that prosecutors and judges might have looked sympathetically upon his case.” Instead, Burress received two years in prison for violating New York’s gun permit law. Football matters intensely to many people, which surely has political consequences. One study finds that public universities with Division I-A football programs receive about six percent more in state appropriations than public universities without football programs, and for those football universities, a victory over an in-state rival is correlated with an additional increase in appropriations the following year. Maybe football shouldn’t matter so much to courts and legislatures, but it seems that sometimes it really does.
September 4, 2009 at 8:13 am
Posted in: Culture, Current Events, Politics, Psychology and Behavior
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Update to the Tale of the Ph.D. Rapper
posted by Michael Kang
About a week ago, the New York Daily News reported a happy tale of Dr. Roxanne Shante, a former rapper who won a legal battle to have her record label pay for a Ph.D. education at Cornell University. Deven blogged briefly about the story here at Concurring Opinions, and the blogosphere was generally pleased by the notion of a young artist winning her fight for an education against a corporate bully. But now Slate is reporting that Shante by her own admission never received a Ph.D. from Cornell and that many other important elements of the story are untrue. Too bad. It was a great story but apparently one full of factual inaccuracies that undercut it completely.
September 2, 2009 at 11:49 am
Posted in: Intellectual Property, Media Law
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Health Care Reform, Public Opinion, and Personal Experience as Information
posted by Michael Kang
James Surowiecki describes an interesting recent shift in public opinion about the health care system in the United States. Last year, polling found that only 29 percent of Americans rated the health care system as “good” or “excellent,” but when asked the same question today, the percentage of the public giving the same answer now has jumped up to 48 percent. Why the sudden increase given that, as Surowiecki notes, “[t]he American health-care system didn’t suddenly improve over the past eleven months”? Surowiecki attributes the rapid increase to the endowment effect. Now that health care reform is actively under consideration, people are focused on “what we might lose rather than on what we might get.” When people encounter uncertainty about trading what they already have for something else, psychologists have shown that people tend to overvalue what they already have and gravitate toward a natural instinct to keep things as they are.
The endowment effect is a plausible explanation for the suddenness of the shift in public opinion, but I have a different intuition than Surowiecki. Although I have not studied public opinion these days with respect to the current debate on health care reform, I have done empirical research about public opinion during the health care reform debates of the early 1990s that could be relevant. Political scientists find generally that people do not normally infer about national conditions directly from their own personal situations. For instance, people who are struggling financially do not assume that their personal situation indicates that the national economy is doing poorly overall as a more general matter. Just so, during the late 1980s and early 1990s, people who had undergone unpleasant experiences with their personal health care did not necessarily assume that the health care system was in bad shape. Their evaluations of the health care system as a whole did not vary from everyone else’s nearly as much as you might expect. However, when Democrats began championing health care reform during the early 1990s and arguing that there was an unaddressed crisis in American health care, people who had undergone negative experiences in their personal health care suddenly began to credit those negative experiences as a source of information for evaluating the system overall. Accordingly, compared to their fellow citizens, their overall views of the system changed very abruptly in a negative direction once political leaders substantiated the perceived reasonableness of that inference.
Although I cannot say definitively, it’s worth considering whether the abrupt shift in public opinion today that Surowiecki identifies is actually a mirror image of what happened during the early 1990s. Remember that, as I mentioned in an earlier post, the American public by and large report positive feelings about their personal health care today. Surowiecki, in fact, observes in the article that a clear majority of the public reports satisfaction with their insurance coverage, and public satisfaction with health care costs in particular has increased from the early 1990s into this decade. A year ago, Democratic supporters of reform probably had the edge in leading public perceptions about the system as a whole in a negative direction. But now with Republican opponents of health care reform touting the virtues of the American health care system, people who are happy with their health care situation now may be crediting their personal situation as a source of information about the system overall in a positive direction. The abrupt shift in public opinion may be less about the endowment effect than a portion of the public suddenly drawing stronger connections between their good personal experiences with health care and their sociotropic evaluations of the system as a whole. Such inferences from personal experience could explain not only the direction of the shift in public opinion about the health care system, but also the speed with which it occurred.
August 27, 2009 at 6:17 am
Posted in: Current Events, Politics, Psychology and Behavior
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More Moneyball
posted by Michael Kang
In my previous post, I argued that Michael Lewis’s influential bestseller Moneyball, widely cited in academia, ultimately relies too much on hyperbole to make its claims about the superiority of Billy Beane’s statistical methods in managing the Oakland Athletics baseball team. In this post, I assess the value of those Moneyball methods by examining the results of Oakland’s 2002 draft, a central event glamorized in the book as a showcase of Beane’s “scientific selection of amateur baseball players.”
This is a long, baseball-heavy post, so let me cut to the chase at the outset. Oakland’s Moneyball draft of 2002 was not the smash success that Lewis’s book forecasted. The seven years since the draft bear that out. Beane had seven first-round picks that year but drafted none of the eleven all-stars signed from the 2002 draft, despite exercising almost twenty percent of all first-round choices in the draft. In fact, only half the players on Beane’s wish list of the top twenty players in the draft ended up playing even a game in the major leagues. To tell a compelling story of Beane’s superiority, Lewis overstates what Cass Sunstein and Richard Thaler call the “blunders and the confusions of those who run baseball teams.” It turns out that other teams do a pretty good job of identifying talent too. In the 2002 draft, Oakland did not draft the best players available, while other teams using traditional methods did equally well or better.
So, what is the lesson for Moneyball? Lewis describes how Beane imported quantitative methods from the academic and financial worlds to identify assets, in this case baseball players, undervalued by the market. The modest notion that statistical methods can be invaluable in the search for these undervalued assets, particularly in an industry so obsessively numbers-oriented as baseball, is unassailable. But Lewis’s claims that Moneyball demonstrates the outright superiority of Beane’s quantitative methods in identifying the best talent are much more difficult to sustain, and Moneyball does not convincingly establish the backwardness of other teams, which had already begun erasing whatever advantages Oakland possessed by the time of Moneyball’s publication.
Instead, Moneyball demonstrates a slightly but importantly different lesson about Oakland’s successes during the early 2000s.
August 21, 2009 at 5:41 am
Posted in: Current Events, Psychology and Behavior
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Moneyball Revisited
posted by Michael Kang
Michael Lewis’s bestselling book Moneyball occupies a unique convergence of academic, sports, and popular fascination. Moneyball profiles Billy Beane and his management of the Oakland Athletics baseball team, with particular attention to Beane’s use of cutting-edge quantitative analysis in an industry portrayed as bound by tradition and decisionmaking by anecdote. Moneyball garnered recent attention again after the movie version of Moneyball, starring Brad Pitt, suddenly halted production just five days before shooting was to begin in July. The event, or nonevent, brought forth several commentaries on Moneyball’s legacy, six years after its publication. Today’s post begins to explain my ambivalence about Moneyball’s place in the academic imagination; my next post continues by arguing that, perhaps to the surprise of its academic enthusiasts, Moneyball actually gets a good chunk of its baseball wrong and in the end, may tell a slightly different story than usually thought.
Baseball fans from outside academia would be shocked how influential and popular the book Moneyball has been within academic circles. Cass Sunstein and Richard Thaler wrote a book review of Moneyball for the Michigan Law Review, and professors have cited Moneyball as inspiration for new approaches to everything from faculty hiring to election administration to health care reform. There’s even a Moneyball-inspired blawg called Moneylaw. The great contribution of Moneyball was to puncture a certain overconfidence in untested conventional wisdom based on unsystematic anecdotal information. Moneyball offered a colorful example from baseball, now widely cited in academia, of how inefficiencies in markets can be exploited by canny operators who identify objective metrics of value underappreciated by traditional practices. As Sunstein and Thaler note, “If Lewis is right about the blunders and the confusions of those who run baseball teams, then his tale has a lot to tell us about blunders and confusions in many other domains.”
The problem with Moneyball is the hyperbole deployed to construct Lewis’s lesson of absolute quantitative triumph. A key element of Moneyball’s influence is the vividness and persuasiveness of Lewis’s account of the Oakland Athletics’ success, but it is so vivid and persuasive at least in part because it exaggerates the brilliance of Billy Beane and his quantitative approach to baseball.
August 18, 2009 at 1:00 pm
Posted in: Current Events, Psychology and Behavior
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The End of Summer (Programs)
posted by Michael Kang
On-campus interviewing is already underway at many law schools, and law students are obviously worried about their job prospects this fall. According to NALP, law firms had already cut back their hiring dramatically last year compared to the year before. Based on early feedback from law students and firms so far, as well as the number of firms that are forgoing summer programs altogether for 2010, it doesn’t look good for 2Ls interviewing on campus right now.
Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to the hiring system that has been in place for decades now—heavy recruiting of 2L students into lavish summer programs, with a high percentage of those students receiving permanent offers during the following fall of their 3L year. Right now, some firms are simply doing away with summer programs for the time being and freezing entry-level hiring out of law schools. Almost all big law firms are limiting the size and duration of their summer programs, and many are deferring the start date by six months to a year for new permanent associates who receive offers out of their summer programs.
I wonder how many of the new changes to law firm recruiting and summer programs will be permanent and remain after the economy bounces back.
August 13, 2009 at 5:14 am
Posted in: Law Practice, Law School
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Framing Health Care Reform
posted by Michael Kang
Washington is giving national health care reform its most serious attention since 1994, when the Clintons’ Health Security Act went down in flames. Gordon Smith highlights a salient political consideration in the political debate over the years—high levels of personal satisfaction with one’s own doctors and other providers. There’s no question that Gordon is right that a major obstacle to reform has been that “[p]eople in the middle class tend to be more or less satisfied with their own health care.” From my research on public opinion about health care reform, I can vouch that the public has reported satisfaction with surprising consistency over the years about their personal health care. Surveys over the last thirty years through today find that roughly four out of five Americans are satisfied with the quality of their medical care. Given that the middle class has been reasonably happy with many aspects of their health care, it has a lot to lose, and as Gordon summarizes from his personal perspective, “reformers have not made a case that health care reform will do anything other than make my life worse.”
A problem for Obama and Democrats in favor of health care reform is that Gordon’s view is not only winning out right now, but it assumes away one of the strongest arguments for reform of some form—that health care costs are increasing at unsustainable rates. In other words, part of the pro-reform response ought to be that doing nothing is also likely to make Gordon’s life worse. The main reason that increased government involvement in health care has gained new support from business groups is that their health care costs are rising rapidly, with little reason to expect any improvement in the absence of reform. Insurance premiums for family coverage have already more than doubled on average over the last decade, and the Congressional Budget Office projects that total spending on health care will account for almost 40 percent of the national GDP by 2050. In other words, if Gordon thinks his health care is manageably expensive today, any successful argument for reform may depend on convincing him that it will be unmanageably so before too long.
It is worth noting that Gordon’s view won the public’s collective mind in 1994. The Clinton initiative was doomed when the middle class, though unhappy with certain aspects of the health care system, decided that reform would give them rationing of care and less freedom of choice over providers. What happened in the absence of reform? Using managed care to slow down cost increases, private insurers instead of government restricted choice to the point that a political backlash ensued and inspired HMO legislation to curb unpopular, at times unethical insurance practices. Once insurers squeezed the cost savings they could find through managed care, costs resumed steep annual increases. Today, fifteen years later, the public finds itself worried again about spiraling costs and the uninsured, with the middle class again worried about government restrictions on choice. The pro-reform argument might be that if reform fails again, we’ll end up in an even worse place in another fifteen years. My point is not a partisan one that any particular plan will or will not limit per capita costs over the next fifteen years, but a short-term framing of the issue might doom even a plan that would.
Of course, even if doing nothing is bad, there’s no guarantee that current proposals for reform actually offer an improvement over doing nothing. As its critics allege, reform could be even worse. A criticism of these proposals is that they would exacerbate, not limit the annual increases in health care spending. Arguments matter about how much health care reform might increase total spending on health care, how well it would limit per capita costs, the value of universal coverage, and so on. These are the fine points of a debate that is getting increasingly heated. But if Obama and Democrats in favor of reform hope to fare better than their counterparts from 1994, then they’ll need to persuade the middle class that the status quo will be really bad in another fifteen years and that health care reform therefore offers something “in it for them” over the longer term.
August 11, 2009 at 5:04 am
Posted in: Current Events, Politics
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The New South and the Voting Rights Act, Post-NAMUDNO
posted by Michael Kang
The current New Yorker features an essay by Malcolm Gladwell on To Kill a Mockingbird and the racial politics of the Jim Crow South. Gladwell criticizes Atticus Finch, an iconic figure among many liberals, for accommodating ingrained racism and passing off to himself what was often “homicidal hatred of black people” as excusable human frailty. Gladwell’s depiction of the Jim Crow South is familiar to anyone with a passing familiarity with the civil rights movement, and it contrasts sharply with sunnier contemporary accounts within election law circles of the New South (where I now live), now reformed by the Voting Rights Act. A common response to the Supreme Court’s recent Voting Rights Act decision in NAMUDNO v. Holder, for instance, was to note the triumph of racial progress and the outdatedness of the Voting Rights Act, once born as a forceful response to the Jim Crow South.
Of course, the presidential election of Barack Obama is the inspiration for much of the racial triumphalism. As Akhil Amar put it, “Obama’s very candidacy is a powerful embodiment of a Reconstruction vision in which blacks, under the Fifteenth Amendment, would be full political equals with a right to vote and to be voted for on the same terms as white.” For many, Obama’s election represented the historic moment signaling the irrelevance of race and race-specific remedies in voting rights. As Paul Krugman argued, “Racial polarization used to be a dominating force in our politics, but we’re now a different, and better, country.”
However, Obama’s election demonstrated not only American racial progress over the last fifty years, but also its surprising stagnation in some parts of the South. Particularly in the deeper South, racial polarization seemed not to have diminished nearly as much. The available data, summarized in an amicus brief written by Nate Persily, Charles Stewart, and Steve Ansolabehere for NAMUDNO, confirms that Obama actually received a lower percentage of the white vote in a number of southern states than John Kerry, who was clearly a weaker candidate in a much more difficult election year for Democrats in 2004. Such patterns of racial polarization need not always suggest race-based reasons for the divergence in voting patterns, but it is difficult not to draw race-based conclusions from Obama’s lack of success among white voters in these areas, particularly given Obama’s advantages in 2008 compared to Kerry in 2004.
In other words, when it comes to race in American politics, things have both changed a lot and stayed the same a bit. Things certainly have changed more than they have stayed the same in most of the country, and for the better, but it doesn’t mean that Section 5 of the Voting Rights Act isn’t still useful in the deep South, where it always has had its most meaningful bite. I have emphasized the continuing relevance of Section 5 even while acknowledging the racial progress we’ve seen since the Jim Crow era that Gladwell depicts in his New Yorker essay. Others, however, argue that Congress should refrain from trying to “save Section 5” of the Voting Rights Act and instead embrace a non-race based “right to vote” model for voting rights.
I actually agree about the desirability of national efforts at universal laws to protect the right to vote for all voters against the new vote denial, but I see an implicit choice between maintenance of the Voting Rights Act and new efforts to bolster a universal right to vote as a false one. There are pitfalls when historic legislation like the Voting Rights Act cast such a big shadow that it threatens to bind up newer, overlapping efforts in the same policy domain, but these pitfalls are not inevitable. We can have both, please. The Voting Rights Act may continue to do valuable work even as the voting rights community expands its attention to non-race based concerns about voter identification, restrictive registration requirements, and voting technology, among other things. The success of the past need not define the present, but it is not inconsistent with it either.
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August 7, 2009 at 6:48 am
Posted in: Civil Rights, Constitutional Law, Current Events, Politics
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The Institutional Turn in Budget Politics and Election Law
posted by Michael Kang
Thanks so much to Danielle, Dan, and their co-bloggers for inviting me to visit for the month of August. I start my guest stint at Concurring Opinions by writing a bit about an interesting proposal by Chris Elmendorf and Ethan Lieb for breaking state budget stalemates that appeared in the New York Times op-ed page last week. Elmendorf and Lieb point out that California’s embarrassing budget stalemate, during which the state of California was forced to issue IOUs, threatens to become a yearly ritual during the economic downturn. They propose “[i]f the Legislature and the governor fail to adopt a budget four weeks before the deadline for the new fiscal year, a group of randomly selected citizens – one from each legislative district – would be convened to resolve the stalemate.” This citizen’s assembly would be presented with proposed budgets from the governor and each party’s legislative caucus, hear arguments from interested experts and groups for two weeks about each proposal, and choose one of the proposed budgets, which then would become law.
The idea is not only creative and promising, but representative of a larger movement toward institutional solutions in election law that I discuss in a recent book review of Heather Gerken’s The Democracy Index. Increasingly, election law reform is turning to the creation of new political institutions that seek not to deny politics or remove politics from lawmaking, but to channel lawmaking in healthier directions by restructuring leadership incentives more closely with the public interest. The Democracy Index, the subject of Heather’s book, is one such institutional solution. It would aggregate data about election administration into an ordinal ranking of state performance that might make an otherwise arcane subject more accessible to voters. Another institutional solution is my own proposal for gerrymandering reform, which would place competing districting maps prepared by the parties on the ballot for public selection. The hope is that inducing electoral competition between the major political parties pushes both sides toward fairer proposals that appeal to the median voter in what would be a public and avowedly political process. Elmendorf and Lieb’s idea is in this same family of institutional solutions.
Heather and I are working on a new project that identifies, assesses, and ultimately advocates this “institutional turn” in election law with much greater elaboration than I could offer in my short book review (or this post). We think this institutional turn is characterized by at least three important qualities. First, institutional solutions by their nature do not look to courts as neutral regulators of politics who can impose fairness from outside the political process. Second, institutional solutions attempt to harness politics to fix politics. They try to restructure political processes to channel competition among leaders in the direction of the public good. Third, institutional solutions generally enlist popular participation in creative ways and engage the public with central questions of election law, to the extent feasible. Each of these qualities is clear in Elmendorf and Lieb’s proposal, which embodies, at least in my view, exactly the right normative instincts emerging in election law.
August 3, 2009 at 9:37 am
Posted in: Book Reviews, Constitutional Law, Current Events, Politics
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