This article explores the claim that representative legislatures should create general legal norms. After distinguishing the requirement that statutes be general from the broader rule‐of‐law idea that law be general, I concentrate on the French constitutional tradition to argue that the plausibility of the claim turns on the elucidation of a set of social norms and understandings about the proper role of representative legislatures mediating between abstract ideals of the common good and local practices. I call these norms grammars. The (...) article then briefly compares the French “Sieyèsian” with the US “Madisonian” grammar of political representation regarding the issue of the generality of statutes and concludes with a plea for an in‐depth comparative investigation into different such grammars. (shrink)

Are new democracies with divided government and volatile parties politically ill fated? The literature suggests so, but cases of emergent democracies such as Taiwan and Brazil that face both conditions defy the prediction. This paper explains why: party volatility follows from pursuing distinct executive and legislature agendas under divided government; the political ambition that underlies these conditions sustains democratic and even political performance. We evaluate the argument through government spending in Taiwan. The results corroborate our expectations: they show more (...) parties composing the legislature as government spending favors an executive agenda and neglects a legislative welfare-spending agenda. The findings make three contributions to the literature: first, they reveal a political divide between executive and legislature rather than ideological parties to undercut concerns regarding performance. Second, they demonstrate that the strategic use of government spending to institutionalize party development along an executive agenda fuels party fragmentation. Third, they show that legislators split, switch, or create alternative routes to office in reaction to strategic spending to underscore that ambition underlies party volatility and divided government. (shrink)

In this article, we review the intrinsic democratic flaws in electoral representation, lay out a set of principles that should guide the construction of a sortition chamber, and argue for the virtue of a bicameral system that combines sortition and elections. We show how sortition could prove inclusive, give citizens greater control of the political agenda, and make their participation more deliberative and influential. We consider various design challenges, such as the sampling method, legislative training, and deliberative procedures. We explain (...) why pairing sortition with an elected chamber could enhance its virtues while dampening its potential vices. In our conclusion, we identify ideal settings for experimenting with sortition. (shrink)

This article explores the relevance of disagreement about values and about the functions and effects of law to debates concerning the appropriate relationship between courts and legislatures, common law and statute. Recent developments in tort law provide a context for the discussion. The argument is that in general, political processes of law-making should be preferred judicial processes.

Web sites of the 50 state legislatures are evaluated on five criteria: content, usability, interactivity, transparency, and audience. An overall quality score for each site was computed. The evaluation revealed a wide range of quality in the sites, including that of features or aspects that could possibly foster citizen participation. The higher rated sites help define “best practices” in this regard and provide suggestions as to how other states' sites might make improvements and possibly increase participation.

In the Social Contract Rousseau gives what could be called a philosophical rule of recognition for law in Modernity: a law is law if and only if 'the whole people rules over the whole people'. Thus, he defines self-legislation as, at bottom, collective intentional action. I will first map out the speech act structure [LEX] underlying self-legislation on this account. In particular, I argue for a first person plural counterpart of the reflexive structure inherent to intentions generally: the notion of (...) a collective self. Then I take issue with Bratman's analysis of shared intentional activity in terms of mutuality, submitting that it misses out on the specifically political presupposition involved in 'doing something together'. I will show why 'mutuality' requires representation of the unity of a polity, and how this representation can take form without either external authority or mutual responsiveness. (shrink)

We build a multiple hierarchical model of a representative democracy in which citizens elect ward representatives, ward representatives elect county representatives, county representatives elect state representatives, and state representatives elect a prime minister. We use our model to show that the policy determined by the final representative can become more extreme as the number of hierarchical levels increases as a result of increased opportunities for gerrymandering. Thus, a sufficiently large number of voters provide a district maker an advantage, enabling her (...) to implement her favorite policy. (shrink)

Social network analysis has become an increasingly important tool among political scientists for understanding legislative cooperation in modern, democratic nation-states. Recent research has demonstrated the influence that group affinity (homophily) and mutual exchanges (reciprocity) have in structuring political relationships. However, this literature has typically focused on political cooperation where costs are low, relationships are not exclusive, and/or partisan competition is high. Patterns of legislative behavior in alternative contexts are less clear and remain largely unexamined. Here, we compare theoretical expectations of (...) cooperation in these contexts from the political and biosocial sciences and implement the first assessment of political alliance formation in a novel legislative environment where costs to cooperation are high and party salience low. We implement a stochastic actor-oriented model (SAOM) to examine bill floor sponsorship, a process in which a “floor sponsor” becomes the exclusive advocate for a colleague’s piece of legislation, in the Utah state legislature from 2005 to 2008—a context in which gender (male) and political party (Republican) supermajorities exist. We find that (1) party and gender homophily predict who legislators recruit as floor sponsors, whereas seniority does not, and (2) legislators frequently engage in reciprocal exchanges of floor sponsorship. In addition, whereas gender homophily increases the likelihood of reciprocity, party homophily decreases it. Our findings suggest that when the cost of cooperation is high, political actors use in-group characteristics for initiating alliances, but once a cooperative relationship is established with an out-group political member, it is reinforced through repeated exchanges. These findings may be useful for understanding the rise of political polarization and gridlock in democracies internationally. (shrink)

Many scholars have investigated the relationship between protest and repression. Less often examined is the legislative suppression of protest by elites seeking to make protest more costly to protesters. Because state legislatures are largely invisible to the public, this “wholesale” suppression of protest is less likely to trigger public opposition than repression by the police. This study explains the sharp increase in the number and the severity of state legislative bills to repress the right to protest both before and after (...) the election of Donald Trump. In particular, it examines whether these can be attributed either to Republican control of state legislatures or to protest threat. Contrary to the findings in much of the literature, bills aimed at suppressing protest are less closely related to threat than to the realignment of state politics. The article also finds that these proposals were influenced by diffusion through policy brokerage. (shrink)

When the state buys and then provides to the citizens goods and services, the state may certainly choose to audit, independently and comprehensively, the quality of the goods and services so provided, particularly when citizens are reporting back that the goods or services are causing unwanted, deleterious effects. This principle applies to intellectual property -- information -- education -- as well as to other goods and services. In particular, it applies to the theory of evolution as taught by the state (...) in its schools, colleges, and universities. A substantial public has long expressed concern; and the state may properly respond to that concern. Naturally, the state would never allow the vendor of goods and services to dictate that only its employees, or others whom it effectively controls, may be allowed to conduct audits. Indeed, persons substantially subject to the control of the vendor are the last possible choices to serve as independent auditors. The conflict-of-interest is well-recognized regarding information and opinion services: a huge problem arose with the big national auditing firms when they also established management consulting divisions -- the auditors tended to report favorably about companies and projects on which their own management consultants were involved. Yet the science community quite bluntly and openly proclaims that only its members -- persons it controls -- may function as auditors of the quality of scientific statements and propositions. They do this by asserting that only scientists may declare what is, or is not, scientific. Now it may be true that within any company, only employees of that company may properly develop the products that the company sells, and only they may deliver the company's statements regarding the quality of its own products. But when a company sells its products outside of itself, to others, such as the government, it may not impose as a condition of sale that only its employees may continue to render opinions about the quality of the product. When the science community actively urges the government to take-up and re-distribute its product, it necessarily surrenders any claim to a monopoly over auditing the product. A difficulty of conducting truly independent audits of science product vended to the government for delivery to the people lies in the fact that to-date, there is no systematic program of developing and training people to serve as such independent auditors. The closest group of people to rely on for this would be lawyers who, in litigation, have developed the ability to cross-examine expert witnesses in cases such as patent cases, or product-liability cases, or other litigations that involve expert testimony in advanced academic fields. This paper outlines a program by which states can conduct appropriate independent audits of evolution as vended to the state by the science community. (shrink)

The idea of a hybrid bicameral system combining election and sortition is investigated. More precisely, the article imagines how an elected and a sortition chamber would interact, taking into account their public perception and their competing legitimacies. The article draws on a survey of a representative sample of the Belgian population and Belgian members of parliament assessing their views about sortition in political representation. Findings are combined with theoretical reflections on election’s and sortition’s respective sources of legitimacy. The possibility of (...) conflicting legitimacies and mutually detrimental interactions leads to considerations of the effects of different possible distributions of power between the chambers as a crucial determinant of their interactions and perceived legitimacy. (shrink)

The paper is about the uses of the argument from legislative counterfactual intention, in the field of legal interpretation and argumentation. After presenting the argument from intention in general, it distinguishes the varities of the argument from counterfactual legislative intention and discusses their justification conditions.

The interactive nature of the Internet is seen by some as a technological innovation that might boost participation in politics and civic affairs. That potential, however, is clouded by imprecise definitions of interactivity found among scholars and practitioners alike. Evaluation of state legislature Web sites found them to not be very interactive under most definitions of the term. Chief technology officers of the legislatures appear to differ as to which site features promote interactivity. The current state of these sites (...) may do more to encourage civic engagement than to promote interactivity. (shrink)

Legislated Rights is a welcome contribution to constitutional theory. The book’s overall aim is to rehabilitate the role of legislation and legislatures in ‘securing human rights’. 1 A major...

The Internet, not unlike previous communication technologies, has been predicted to dramatically change the nature of democracy. The interactive nature of Web sites, in particular, is seen as the basis for a new cyberdemocracy. Although the definition of interactivity is less than precise, an evaluation of state legislature Web sites finds them lacking many features that could be considered interactive. Furthermore, the degree of a site’s interactivity was not strongly correlated to a site’s use. Web sites can also foster (...) interaction, both on- and off-site, through interactive and noninteractive features. When sites were examined for their potential to foster interaction, there was a strong relationship with site use. The current focus on interactivity may obscure the potential to promote interaction and lead to an overemphasis on interactive features that are sometimes nothing more than high-tech gimmicks. (shrink)

In the summer of 2008, the Spanish legislature resolved to grant great apes (though not all simians) basic human rights. While the decision to grant such rights came about largely through the lobbying efforts of the Great Ape Project (GAP), the decision has potential reverberations throughout the scientific world and beyond in its implications for shaping determinations of “what is human.” Such implications do not appear to be lost on various groupings of scientists who have spoken about their opinions (...) about the case and the project in general. These groupings of scientists, I argue, using the work of Mary Douglas and others, can be compared to “tribes” actively advancing and defending their classifications of the “human” in a bid for a retention or expansion of power. (shrink)

This is a book review of Grégoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley W. Miller, and Francisco J. Urbina, "Legislated Rights" (Cambridge U. Pr., 2018).

The article describes the main publications of emigrant press during the period of 1945-1990. These publications reflect a significant contribution to the academic research of the constitutional development problematics of an independent Republic of Lithuania in 1918-1940, made by the emigrants who escaped Soviet aggression by going to the West. Among emigrants these topics were mostly analysed and described at the time when any possibilities of objective academic research in Lithuania were widely limited by Soviet ideology and politics. Exceptional attention (...) of emigrant authors was attracted by the democratic constitutional structure of Lithuania, established by the Constituent Assembly. The article describes the academic research made by emigrants on the main constitutional acts established by the Constituent Assembly, such as the resolution of the 15th of May, 1920, ascertaining the fact of reconstructing the independence of the state of Lithuania, as well as the Constitution of Lithuania of August the 1st, 1922. (shrink)

This study analyses news reports of public reactions to the controversial legislators’ monthly/annual income in Nigeria in 2019, which was presumed to far exceed the salaries of legislators worldwide. Data for this study are news and opinion articles published between 2017 and 2019 that represent public response to the salary scandal involving public officers and National Assembly members. Critical discourse analysis is adopted in the analyses of media representations of the main actors in and situations of the scandal. Hence, discursive (...) strategies identified in the resistance discourse of the news media are qualitatively analysed. The study argues that lack of accountability and widespread corruption in the Nigerian political economy is a reflection of weak political institutions, such as those that empower legislators to enrich themselves. (shrink)

This article focuses on the relationship between democracy and the notwithstanding clause in s.33 of the Canadian Charter of Rights and Freedoms. A number of scholars argue that s.33 is inherently ‘democratic’, as it is an assertion of legislative supremacy. The most influential such theory is Jeremy Waldron’s. This article offers a democracy-based critique of Waldron’s democracy-based account of the notwithstanding clause. The argument that the notwithstanding clause is necessarily ‘democratic’ ignores the constitution of the legislature through elections and (...) the risk of self-dealing by the legislative branch, adopts an idealistic view of legislatures at odds with the reality of executive dominance and party discipline, and over-relies on the assumption that the electorate will ensure retrospective accountability for misuse of s.33. Contrary to Waldron and those who have adopted his arguments in Canada in the context of the Charter, the article argues we can be democrats and have faith in the capacities of legislators and voters while still maintaining skepticism about the uses to which the notwithstanding clause may be put. In short, s.33 is not inherently democratic. The political morality of each use of the notwithstanding clause—including whether it helps or harms democracy—must be assessed on a case-by-case basis. (shrink)

The legislature and the judiciary have been a constant focus of contemporary political philosophy. However, the executive – ‘the government’ itself – has been comparatively neglected. Today, this is changing with a well-spring of new work that bears upon what we might call the ideal of ‘good governance’, that is, how governments (and/or their agents) should exercise their powers. This review paper begins by clarifying the concepts of ‘governance’ and ‘good’ governance (§1). It then highlights five sets of values, (...) working nominally from the most foundational constraints on the exercise of government power to those that should guide the exercise of discretion: legitimacy and rule of law (§2); respect and trustworthiness (§3); efficiency and rationality (§4); public participation and accountability (§5); and the public interest and fiduciary duties (§6). (shrink)

Legislatures enact laws and the courts interpret them. Under the doctrine of legislative supremacy, a judge is not free to ignore or modify a statutory provision in order to substitute a rule that seems to him to be better reasoned; thus where the language of a statute is clear and unambiguous, interpretation is unnecessary and it must be enforced according to its terms. Nevertheless, gaps and ambiguities can arise and, in such cases, courts apply interpretive rules, or ‘canons of construction’, (...) to resolve these ambiguities. One frequently invoked rule requires that words that are not defined by a statute be given their ordinary meaning by the interpreting court. In recent years, the United States Supreme Court has increasingly relied upon dictionary definitions in applying this rule. The Court’s use of dictionaries as authority for its interpretations incorporates the assumption that the dictionary is the best source for ascertaining the meaning of statutory texts. This article challenges that assumption on linguistic grounds. I argue that the focus on definitions skews the interpretation of statutory language by isolating words from their semantic context. By comparing two cases in which the Court used dictionary definitions to a third case in which the definition used by the Court was contained in the statute itself, I demonstrate that the ordinary meaning of legal terms cannot be determined by dictionary definitions. (shrink)

: State legislatures consider numerous bills to regulate managed care organizations. After identifying the legal, political, and economic barriers to state reform efforts, the paper assesses recent types of state regulation, particularly mandated benefits and disclosure requirements. Two prerequisites to future reform, coalition building and the diffusion of information about managed care, are analyzed.

In 2007, many legislatures considered, and two enacted, bills mandating HPV vaccination for young girls as a condition of school attendance. Such mandates raise signifcant legal, ethical, and social concerns. This paper argues that mandating HPV vaccination for minor females is premature since long-term safety and efectiveness of the vaccine has not been established, HPV does not pose imminent and signifcant risk of harm to others, a sex specifc mandate raises constitutional concerns, and a mandate will burden fnancially existing government (...) health programs and private physicians. Absent careful consideration and public conversation, HPV mandates may undermine coverage rates for other vaccines. (shrink)

In 2016, the Colorado legislature passed an amendment to Colorado’s medical proxy law that established a process for the appointment of a physician to act as proxy decision maker of last resort for an unrepresented patient (Colorado HB 16-1101: Medical Decisions For Unrepresented Patients). The legislative process brought together a diverse set of stakeholders, not all of whom supported the legislation. Following passage of the statutory amendment, the Colorado Collaborative for Unrepresented Patients (CCUP), a group of advocates responsible for (...) initiating the legislative process, coordinated a unique effort to engage these stakeholders in the creation of a set of voluntary guidelines to assist facilities and individual careproviders in the implementation of policies and procedures enabled by the statute. This article delineates the questions and concerns of stakeholders, describes how those issues were addressed within the guidelines, and proposes additional opportunities for research to assess the impact of the legislation in Colorado. (shrink)

Courts and legislatures are increasingly being called upon to restrict the autonomy of pregnant women by requiring them to behave in ways that others determine are best for the fetuses they carry. The state should not attempt to transform pregnant women into ideal baby‐making machines. Pregnant women make decisions about their behavior in the context of the rest of their lives, with all the attendant complexities and pressures. Our interest in helping future children by improving prenatal care would best be (...) furthered by helping pregnant women to make informed, less constrained choices, not by punishing women or depriving them of choices altogether. (shrink)

We live in a world of crowds and corporations, artworks and artifacts, legislatures and languages, money and markets. These are all social objects — they are made, at least in part, by people and by communities. But what exactly are these things? How are they made, and what is the role of people in making them? In The Ant Trap, Brian Epstein rewrites our understanding of the nature of the social world and the foundations of the social sciences. Epstein explains (...) and challenges the three prevailing traditions about how the social world is made. One tradition takes the social world to be built out of people, much as traffic is built out of cars. A second tradition also takes people to be the building blocks of the social world, but focuses on thoughts and attitudes we have toward one another. And a third tradition takes the social world to be a collective projection onto the physical world. Epstein shows that these share critical flaws. Most fundamentally, all three traditions overestimate the role of people in building the social world: they are overly anthropocentric. Epstein starts from scratch, bringing the resources of contemporary metaphysics to bear. In the place of traditional theories, he introduces a model based on a new distinction between the grounds and the anchors of social facts. Epstein illustrates the model with a study of the nature of law, and shows how to interpret the prevailing traditions about the social world. Then he turns to social groups, and to what it means for a group to take an action or have an intention. Contrary to the overwhelming consensus, these often depend on more than the actions and intentions of group members. (shrink)

Bioethics represents a dramatic revision of the centuries-old professional ethics that governed the behavior of physicians and their relationships with patients. This venerable ethics code was challenged in the years after World War II by the remarkable advances in the biomedical sciences and medicine that raised questions about the definition of death, the use of life-support systems, organ transplantation, and reproductive interventions. In response, philosophers and theologians, lawyers and social scientists joined together with physicians and scientists to rethink and revise (...) the old standards. Governments established commissions to recommend policies. Courts heard arguments and legislatures passed laws. This book is the first broad history of the growing field of bioethics. Covering the period 1947-1987, it examines the origin and evolution of the debates over human experimentation, genetic engineering, organ transplantation, termination of life-sustaining treatment, and new reproductive technologies. It assesses the contributions of philosophy, theology, law and the social sciences to the expanding discourse of bioethics. Written by one of the field's founders, The Birth of Bioethics is based on extensive archival research into sources that are difficult to obtain and on interviews with many of the leading figures in the moral debates in medicine. A very readable and comprehensive account of the evolution of bioethics, this book stresses the history of ideas but does not neglect the social and cultural context and the people involved. It will serve the information needs of philosophers, ethicists, social historians, and everyone interested in the origins of some of today's most hotly debated issues. (shrink)

By giving legislatures broad power to override constitutional rights provisions, recent Commonwealth rights charters are said to create a new ‘weaker’ model of constitutional rights protection than the traditional US model of strong-form judicial review. The article, however, argues that to date such powers have rarely if ever been used by Commonwealth legislatures, and thus have had little direct effect on the strength of judicial review in Commonwealth countries. At most, such powers may have had some indirect effect on the (...) strength of review in the Commonwealth, compared to the United States, by encouraging greater deference by courts such as the Supreme Court of Canada to attempts by parliament to engage in ‘dialogue’ via ordinary legislative means. This more limited—and contingent—view of Commonwealth–US constitutional difference also has clear practical implications, the article suggests, for ongoing attempts to ‘borrow’ or adopt the new Commonwealth constitutional model elsewhere. (shrink)

In 1989 the Oregon Legislature voted not to wait any longer for national leaders to serve up a solution to the problem of the millions of Americans (450,000 in Oregon) who are uninsured for health care. Under the leadership of Senator John Kitzhaber, President of the Oregon Senate, the lawmakers put together a package of bills designed to bring every Oregonian the security of third party financing for needed health care. The Oregon Plan's key innovation is the idea that, (...) from a societal perspective, some health services can be declared more important than others. From that central idea came the thought that the whole range of health services could be arrayed to reflect social priorities relevant to Medicaid budgeting and the design of new health insurance programs for “the uninsured.”. (shrink)

Pursuing equality is an important challenge for any modern democratic society but this challenge faces two sets of difficulties: the theoretical question of what sort of equality to pursue and for whom; and the practical question concerning which legal and political institutions are the most appropriate vehicles for implementing egalitarian social policy and thus realizing egalitarian justice. This book offers original and innovative contributions to the debate about equality of opportunity. The first part of the book sets out a theory (...) of equality of opportunity that presents equal opportunities as a normative device for the regulation of competition for scarce resources. The second part shifts the focus to the consideration of the practical application by courts or legislatures or public policy makers of policies for addressing racial, class or gender injustices. The author examines standardized tests, affirmative action, workfare, universal health-care, comparable worth, and the economic consequences of divorce. (shrink)

In recent years American legislatures and other governing bodies, public and private, have been considering, probably more frequently than ever before, problems associated with the idea of overthrow of government by force and violence. The question usually takes the form of whether Communists believe in and advocate this doctrine; and, if they do, whether they should therefore be penalized in various ways. This issue is and has been central to a series of legal actions which, whatever their ultimate outcome, will (...) constitute a landmark in the history of American jurisprudence. (shrink)

Although in Italy there is currently no effective law on physician-assisted suicide or euthanasia, Decision No. 242 issued by the Italian Constitutional Court on September 25, 2019 established that an individual who, under specific circumstances, has facilitated the implementation of an independent and freely-formed resolve to commit suicide by another individual is exempt from criminal liability. Following this ruling, some citizens have submitted requests for assisted suicide to the public health system, generating a situation of great uncertainty in the application (...) processes. As a matter of fact, shared and defined procedures are lacking as Decision 242/2019 merely added some principles on which the legislature will have to base its future intervention. This paper analyses the advisory role that the Decision attributes to territorial ethics committees with the aim of stimulating discussions on their role in oversight mechanisms. The proposed conclusion is that the envisaged role does not appear consistent with the functions of these bodies and is ultimately substantially undefined and unjustified. (shrink)