Category: Articles

The Effectiveness of Money in Ballot Measure Campaigns – Article by Thomas Stratmann

From Volume 78, Number 4 (May 2005)
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When it comes to money in politics, academic research has a difficult time establishing that the resources spent by special interest groups influence the formation of legislation, the passage and defeat of ballot measures, and the identity of the winner in candidate elections. For example, the academic literature on ballot initiatives suggests that campaign expenditures raised to pass initiatives have little effect on passage rates; if money has had any influence at all, then it may be in opposing initiatives. Elisabeth Gerber finds the evidence so weak that she concludes, “the empirical evidence provides further basis for rejecting the allegation that economic interest groups buy policy outcomes through the direct legislation process.” Other scholars have found that when special interests want initiatives passed, “money spent by proponents in this arena is largely wasted.” Also some works in the academic literature on campaign spending and campaign contributions find that their effects on political outcomes are small.

In contrast to much of the academic work, politicians appear to believe that money is important in politics. This is also suggested by the 1962 claim made by Jesse Unruh, Speaker of the California Assembly, that “‘money… is the mother’s milk of politics.’” Moreover, the popular press is full of claims that money has an important and overly heavy influence on politics.

 

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Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform – Article by Nathaniel Persily & Melissa Cully Anderson

From Volume 78, Number 4 (May 2005)
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Perhaps more than any other political phenomenon, incumbents’ capture of political institutions through the manipulation of the rules of the electoral game has commanded the attention of scholars of the law of democracy in recent years.

 

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Paying For Politics – Article by John M. de Figueiredo & Elizabeth Garrett

From Volume 78, Number 3 (March 2005)
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With the Bipartisan Campaign Reform Act (“BCRA”) of 2002, Congress enacted the most sweeping reform of the federal campaign system in nearly thirty years. Commentators hailed the bill as the “most far-reaching and controversial attempt to restructure the national political process in a generation” and as the answer to Americans’ demand for reform “in order to reclaim the power of their voices and their votes.” When the Supreme Court endorsed virtually the entire bill as constitutional in McConnell v. Federal Election Commission, it set the stage for the 2004 election, the first to be held under the new campaign rules.

Shortly after the Court’s announcement, however, policymakers and jurists acknowledged the pressing need for further reform. For example, reform groups petitioned the Federal Election Commission (“FEC”) to extend regulation to § 527 organizations. These nonprofit organizations are not constrained by contribution limitations to the same extent as political parties and political action committees; and they raised hundreds of millions of dollars to influence the Fall 2004 election. Moreover, the 2004 presidential campaign, far from heralding a new era, emphasized the inadequacy of the presidential public funding system, as three major candidates – including the two major-party nominees, George W. Bush and John Kerry – declined federal matching funds during the primary season so that they could spend unlimited amounts of money before their party conventions. The Presidential Election Campaign Fund, which provides public money to presidential campaigns, did not have sufficient resources in early 2004 to pay what it owed the Democratic candidates who chose to participate in the system, and it is projected to be insolvent by 2008. In short, it has become clear that BCRA has not solved the problems of federal campaign financing, but is only – at best – an interim step in a continuing process. The challenge now is to determine the shape of the next reform.

 

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Architectural Censorship and the FCC – Article by Christopher S. Yoo

From Volume 78, Number 3 (March 2005)
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Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.

 

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Constitutionalism in the Streets – Article by Gary D. Rowe

From Volume 78, Number 2 (January 2005)
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This Article embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study of United States v. Peters, the first Supreme Court decision to strike down a state law. In the last half century, the Supreme Court has repeatedly asserted that it is the “ultimate expositor of the constitutional text.” From Cooper v. Aaron to United States v. Morrison, the Court has invoked no less than the authority of Chief Justice John Marshall and his opinion in Marbury v. Madison to burnish its claim of judicial supremacy. Several legal scholars have recently come to question this assertion, arguing that judicial supremacy deviates from the path of the Founders and is of a more recent vintage. This Article both extends and questions the important project of these critics.

Both the Court and its scholarly critics rely heavily on what they take to be the Founders’ understanding of the proper role of the judiciary, and they have accordingly excavated the meaning of various Founding-era texts. This Article seeks to show, through a detailed analysis of the controversy that led to and followed the underexamined Peters decision, that such an analysis is incomplete because the role of the Court was unsettled and deeply contested in the early Republic. The Article uses archival, newspaper, and published sources in order to recount the remarkable travails of Gideon Olmsted, a sailor and American Revolutionary privateer, who spent over three decades attempting to collect money that a Continental Congress appellate court had awarded him in a suit against Pennsylvania in the late 1770s. Pennsylvania defied the court’s judgment, and Olmsted took his case to the new federal court system in 1803, and ultimately to Chief Justice Marshall’s Supreme Court in 1809, in what became the Peters case. Pennsylvania refused to comply with the Supreme Court’s enforcement order, and an armed clash between federal and state forces in the streets of Philadelphia ensued.

It is a mistake, the Article suggests, to treat Chief Justice Marshall’s nationalistic rhetoric in the Peters opinion as decisive (as the Court did in Cooper v. Aaron) without looking at the intense dispute and nuanced maneuvering outside the courtroom that surrounded Peters. Chief Justice Marshall was but one player among many in a tense standoff, and the Court was of but limited effect in settling a major, lingering controversy concerning the boundary between the federal and state governments—a controversy that dated to the days of the Continental Congress and that had once helped make the original case for a national constitution.

The surprising events that surrounded the Court’s decision in Peters should tell us something about the difficulty of resolving Founding era constitutional disputes, given the divergent understandings of the Court’s role that disputants invoked. Moreover, both sides of the controversy utilized a myriad of nonjudicial devices, including petitioning and appealing to other states, which were at least as important in the controversy’s ultimate resolution as the Court’s decision. The Article thus makes the case for the importance of studying actual constitutional practice instead of simply focusing on court decisions and official legal texts. By calling attention to the seemingly foreign ways that constitutionalism operated in the early American Republic, it urges scholars to treat the period as one of uncertainty, experimentation, and contingency, rather than attempting to mine it for precedents and traditions that support or contradict contemporary practices.

 

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On Software Regulation – Article by R. Polk Wagner

From Volume 78, Number 2 (January 2005)
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This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibrium of regulation-by-software. The absence of a legal right will stimulate a technological response – and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.”

The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) cyberproperty right – defined as the right to exclude others from one’s network resources. The debate over whether, how, and why concepts of property rights can be extended to bits stored on Web servers, e-mail systems, and the like is both deeply intertwined with technology and fundamentally comparative in nature, bringing the importance of understanding the regulatory costs and benefits of software, as compared to law, into sharp relief.

The analysis that emerges suggests that, contrary to much of the relevant scholarly literature (and perhaps counterintuitively), the availability of technological mechanisms to replace legal rights likely strengthens, rather than weakens, the case for legal regulation in the form of property rights. At least in this context, a software-centric regulatory approach is dominated by regimes premised on property-backed contractual relationships.

Considering the regulatory environment of cyberspace from this perspective may have profound effects on the way we think about the form and function of law online. The nature of cyberspace as particularly sensitive to emerging concerns about the tyranny of software suggests that the online environment might be better suited for a broad property rights regime than has been recognized to date.

 

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Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance – Article by Stephen J. Choi & G. Mitu Gulati

From Volume 78, Number 1 (November 2004)
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The judicial appointments process has grown increasingly frustrating in recent years. Both sides claim that their candidates are the “most meritorious” and yet there is seldom any discussion of what constitutes merit. Instead, the discussion moves immediately to the candidates’ likely positions on hot-button political issues like abortion, gun control, and the death penalty. One side claims that it is proposing certain candidates based on merit, while the other claims that the real reason for pushing those candidates is their ideology and, in particular, their likely votes on key hot-button issues. With one side arguing merit and the other side arguing ideology, the two sides talk past each other and the end result is often an impasse. To get past this impasse, we propose placing judges in a tournament based on relatively objective measures of judicial merit and productivity. A tournament allows the public to test the politicians’ claims of merit. Being able to test these claims helps make transparent the occasions in which the real debate is over ideology. It is harder to disguise a purely ideological candidate as the best from a “merit” standpoint when the candidate performs poorly relative to many other judges based on objective factors. Once merit-based arguments have been isolated (or at least reduced in scope) to factors related to the tournament, it should be possible to have a transparent and meaningful debate over ideology.

This Article runs such a tournament using data on opinions authored by active federal circuit court judges from one common time period: the beginning of 1998 to the end of 2000. The focus on a common time period helps put judges in the tournament on a level playing field. We then generate a series of measures of merit focusing on (a) productivity, (b) opinion quality, and (c) judicial independence. While not perfect, our measures interject a greater focus on merit in the current nomination process (thereby revealing previously nontransparent motives based on ideology). With our data, we are able to test the claims of merit that the next president will inevitably make when he announces one of his favorite circuit court judges as the nominee for the Supreme Court.

 

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Tribute: A Tribute to Professor David Carroll – Article by Arthur Berney, Stephen J. Morse, Michael H. Shapiro, Matthew Spitzer, Stephen H. Turner & Charles D. Weisselberg

From Volume 78, Number 1 (November 2004)
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The following tributes commemorate the May 2004 passing of David Carroll, one of USC Law School’s most beloved and well-respected professors. Professor Carroll was a member of the faculty from 1975 until his retirement in 1992. These pieces evidence the many wonderful contributions that Professor Carroll made to the Law School and the lives of those around him.

 

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