Abstract

http://ssrn.com/abstract=1632485
 
 

Footnotes (111)



 


 



When Courts Won’t Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy


Michael S. Kang


Emory University School of Law

June 29, 2010

Ohio State Law Journal, Vol. 68, 2007
Emory Law and Economics Research Paper No. 10-65
Emory Public Law Research Paper No. 10-105

Abstract:     
After two prominent U.S. Supreme Court decisions on partisan gerrymandering during recent years, the law of partisan gerrymandering remains as muddled as beforehand. Commentators attribute the Court’s confused reasoning, after which the Court still fails to provide a legal standard for partisan gerrymandering, to a broader failure to apply a structural approach to problems in the law of democracy.1 Under this view, the Court encounters doctrinal dead ends, epitomized by the partisan gerrymandering cases, precisely because it refuses to shift its conventional focus on individual rights to a new structural focus on a substantive vision of the proper functioning of the political process. However, in this brief Article, I speculate that quite the opposite may be true. The Court’s failures in the partisan gerrymandering cases may result from what amount to efforts by the Court to move in structural directions. The partisan gerrymandering cases therefore highlight what may be serious practical challenges for judicial application of a structural approach to the law of democracy.

Number of Pages in PDF File: 25

Keywords: elections, redistricting, democracy, gerrymandering, politics, LULAC v. Perry, Vieth v. Jubelirer, structural approach, election law

Accepted Paper Series


Download This Paper

Date posted: June 30, 2010  

Suggested Citation

Kang, Michael S., When Courts Won’t Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy (June 29, 2010). Ohio State Law Journal, Vol. 68, 2007; Emory Law and Economics Research Paper No. 10-65; Emory Public Law Research Paper No. 10-105. Available at SSRN: http://ssrn.com/abstract=1632485

Contact Information

Michael S. Kang (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
Feedback to SSRN


Paper statistics
Abstract Views: 331
Downloads: 58
Download Rank: 208,595
Footnotes:  111

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.578 seconds