Some Skepticism about the ‘Separable Preferences’ Approach to the Single Subject Rule: A Comment on Cooter & Gilbert
8 Pages Posted: 16 Apr 2010 Last revised: 24 Jul 2013
Date Written: 2010
This is a short Response to Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 843 (2010). The “single subject” rule – mandating that voter initiatives embrace no more than one subject – has vexed courts and scholars alike for decades. Cooter and Gilbert make a valiant attempt to bring rationality and consistency to judicial application of the rule. They propose a “separable preferences” decision criterion that they argue will improve the democratic process by reducing logrolls and depoliticizing adjudication. We are skeptical. Though we agree that the decision criterion that Cooter and Gilbert propose could work in theory to limit the number of voter initiatives containing certain types of logrolls, we have two primary concerns. First, their approach is premised on a normative hostility to logrolling that is not justified by existing political theory. While it is true that some logrolls can lead to harmful outcomes, other logrolls can be socially beneficial, and the criterion that Cooter and Gilbert propose would eliminate both socially beneficial and harmful logrolls. Second, we do not believe that the separable preferences criterion would lead to court consistency in application of the single subject rule. Our own research finds that in states that allow courts to aggressively police single subject violations, judicial decisions in single subject cases are heavily influenced by the judge’s political preferences rather than neutral, objective rules. We suspect that courts in states that have shown restraint in application of the single subject rule would become much more aggressive if they adopted the separable preferences criterion, leading to greater politicization of adjudication.
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