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In the United States’ early history, state legislatures often formally instructed their federal representatives on particular votes. This practice flourished for a century but then died out—a change that many scholars attribute to the Seventeenth Amendment. This Note argues that previous scholars have ignored other, more important, reasons for the demise of instructions.

The six-year term length for U.S. senators, combined with the increasingly rapid turnover in state legislatures, prevented binding instructions from becoming permanently entrenched. Instructions were held in place after the Founding only by constitutional culture, but even this did not last. After Southern Democrats vigorously used instructions to purge Whigs from the Senate in the 1840s and 1850s, the use of instructions was indelibly linked to the South. Not surprisingly, the doctrine of instructions was one of the casualties of the Civil War. Following the War, the roles were reversed: The states—especially the Southern states—were taking instructions from the federal government. Today, instructions still exist but as nonbinding “requests” for action. This new conception of instructions returns us full circle to James Madison’s conception of the proper role of instructions: a right of “the people . . . to express and communicate their wishes” to their representatives.

This Note argues against the use of the prudential political question doctrine (PPQD), as exemplified by the Vieth v. Jubelirer plurality opinion. In Vieth, the Supreme Court avoided formulating a standard for adjudicating the constitutionality of partisan gerrymandering due to a claimed lack of a “discernible and manageable standard.” This meant, according to the plurality, that no proposed doctrinal test was both concrete enough to be workably deployed by lower courts and discernible enough in the constitutional text, history, and structure, inter alia. Although the Vieth plurality opinion presents itself as based on universally applicable metadoctrine determining what is and is not a discernible and manageable doctrinal test, this Note argues the Court’s use of the PPQD is ultimately based on a gestalt prudential judgment about the wisdom of intervention in the particular area of partisan gerrymandering.

This Note then argues that the PPQD leads to negative consequences for future litigants and judicial legitimacy. The PPQD sends litigants on a wild goose chase for a perfect doctrinal standard, when it seems clear that no standard will satisfy the Vieth plurality. It also invites litigants to argue about what a discernible and manageable doctrinal test is in the abstract, rather than to address the particular legal issue at hand. These diversions insulate the judiciary from legitimate criticism of the grounds of its decisions. This Note then compares the PPQD to another option for judicial avoidance: a merits standard that is almost impossible for plaintiffs to meet in practice, such as rational basis review. This Note concludes that a stringent merits standard is a superior mechanism for judicial avoidance because it does not carry the same high costs for litigants and judicial legitimacy as the PPQD. Additionally, it allows the Court to exit from active adjudication of an issue while still preserving its ability to intervene in egregious cases.

This Note examines the phenomenon of deregulation through nonenforcement, drawing on examples from the George W. Bush Administration. It argues that the presumption of nonreviewability afforded to agency refusals to prosecute creates incentives for presidential administrations pursuing deregulatory agendas to manipulate agency enforcement practices. Furthermore, it contends that deregulation through nonenforcement is undesirable because it shields executive branch policy decisions from public view, thereby reducing accountability. Perhaps counterintuitively, the Note suggests that one way to counteract the negative effects of the presumption of nonreviewability is to reduce the level of review applied to other categories of agency action, such as notice-and-comment rulemaking, thus increasing the executive’s ability to act through more accountable means.

How, and how much, does the Constitution protect against political entrenchment?
Judicial ineptitude in dealing with this question—on display in the modern Court’s
treatment of partisan gerrymandering—has its roots in Luther v. Borden. One hundred
and sixty years after the Luther Court refused jurisdiction over competing
Rhode Island state constitutions, judicial regulation of American structural democracy
has become commonplace. Yet getting here—by going around Luther—has
deeply shaped the current Court’s doctrinal posture and left the Court in profound
disagreement about its role in addressing substantive questions of democratic fairness.
While contemporary scholars have demonstrated enormous concern for the
problem of the judicial role in policing political entrenchment, Luther’s central role
in shaping this modern problem has not been fully acknowledged. In particular,
Justice Woodbury’s concurrence in Luther, which rooted its view of the political
question doctrine in democratic theory, has been completely ignored. This Note
tells Luther’s story with an eye to the road not taken.

In this Note I argue that the Federal Election Campaign Act’s $5000 limitation on
individual contributions to political committees should be removed. I advance two
main arguments. First, in light of recent campaign finance decisions, the limitation
appears to be unconstitutional as it imposes a limit on First Amendment rights
without being tailored to the government’s interest in preventing quid pro quo corruption.
Second, eliminating the contribution limitation will have previously unrecognized
normative benefits. Smaller PACs representing a variety of viewpoints will
be more able to compete with established corporate and union PACs, and the
volume of accountable political speech may increase as more money is channeled
through PACs to candidates’ hands.

Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, that intuition has largely gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judge in question will vote for business litigants. Surprisingly, though, when we disaggregate partisan and nonpartisan elections, we find that a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests exists only for judges elected in partisan elections, and not for judges elected in nonpartisan ones. Our findings therefore suggest that political parties play an important causal role in creating this connection between campaign contributions and favorable judicial decisions. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.

The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.

Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process. First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

Critics have accused transnational regulatory networks (TRNs) such as the Basel Committee on Banking Supervision of being undemocratic, but they rarely step back and ask if democracy is the right criterion for evaluating regulatory networks. Such critics often point to the seemingly robust checks of domestic administrative law and argue that similar mechanisms should constrain TRNs. However, the Federal Reserve Board of Governors, a significant banking regulator in the United States, is not democratic. Using the Federal Reserve Board as a case study, this Note challenges critics’ claims that there is such a wide gulf between domestic and global procedures.

On February 21, 2012, members of the Russian punk band Pussy Riot stormed the historic Cathedral of Christ the Savior in Moscow and performed a “punk prayer” to protest the policies of Vladimir Putin’s government. The band members’ subsequent arrests and prosecutions set off a global firestorm of criticism. While some critics focused on the disproportionate sentences handed down by the court following the band’s convictions, or the meaning of justice meted out by an unjust regime, the mainstream reaction was by and large one of disbelief at such an apparently egregious crackdown on free speech. This Note argues that such criticism largely missed the mark by casting the Pussy Riot affair in terms of free speech, despite the likelihood that the punk rockers would have faced a similar fate even under American free speech law—a tradition of protected speech more robust than any other. Instead, criticism of the injustice perpetrated by the prosecutions is better aimed at the inadequate procedural protections of a Russian judiciary in desperate need of reform. As Russians are already aware of the deficiencies in their judicial system, they would likely be much more amenable to international criticism that acknowledges that the Pussy Riot prosecutions did not trample on free speech rights but were nonetheless unjust due to the lack of procedural safeguards accorded to the band members. Such an approach, by more accurately criticizing the real issues Russia’s fledgling democracy faces, promises to further Russia’s development by keeping lines of communication open between the Russian electorate and the West.

Voters in twenty-four states may propose and enact legislation without any involvement from representative branches of government. In recent decades, voters have used popular lawmaking to eliminate groups’ liberty and property interests on topics such as marriage, education, public benefits, and taxes. This Article contends that these deprivations undermine principles historically associated with procedural due process, thus raising serious questions about the constitutionality of initiatives that eliminate groups’ protected interests.

The Fourteenth Amendment’s Due Process Clause embodies principles of fairness that include deliberation, dignity, and equality. The historical salience of these principles is evidenced in colonial charters and state constitutions, the Federalist Papers, antebellum cases interpreting state due process clauses, antebellum cases governing popular lawmaking, and legislative debates leading up to the Fourteenth Amendment’s ratification. These principles should inform the doctrine’s approach to defining procedural fairness.

When deprivation of liberty or property is at stake, the republican system of representative government protects these principles of fairness better than most contemporary plebiscites. Indeed, in a series of vastly understudied cases in the decade leading up to the Fourteenth Amendment’s ratification, at least eight state courts expressed normative doubts about popular lawmaking. While these cases were not premised on due process clauses, these courts nonetheless invoked principles associated with due process and republicanism when questioning popular lawmaking, providing some evidence of the dominant understanding of these terms during that era.

What is more, the requirement of due process of law, at a minimum, prohibits deprivations of liberty or property that violate other constitutional provisions. There is an enduring debate about whether the initiative process violates the non-justiciable Republican Form Clause. This Article seeks in part to inform that debate. And if, in fact, the initiative process violates the nonjusticiable Republican Form Clause, initiatives that deprive individuals of liberty or property violate the justiciable Due Process Clause.