You’re Gonna Need a Thicker Veil

Abstract

Professor Chad Flanders’s latest piece, Election Law Behind a Veil of Ignorance, suggests a “veil of ignorance” rule for election law, focused on conditions when legislators may not know the partisan effect of their actions. This short invited response acknowledges the utility of a veil of ignorance concept, but questions whether partisan effect should be the exclusive screen. The response — foreshadowing a forthcoming piece — also articulates that the primary function of such a concept is not as a first-order rule of statutory interpretation, but as a second-order determinant of which interpretive regime to deploy.