University of Wisconsin–Madison

Recent UW Law Faculty Scholarship: Countering the New Election Subversion: The Democracy Principle and the Role of State Courts; Reliance; and Law and Public Policy: What Is It, Skills of Practitioners and Researchers, Research Designs and Methods, Law School Courses

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN. Among the threats to American democracy, the most serious may also be the most banal: that future elections will be compromised by quiet changes to the law. State legislators across the country have passed bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have introduced new criminal offenses that undermine professional election administration. Power-shifting legislation, audits, and criminal penalties advertise their fealty to law, but they threaten the franchise and electoral integrity as well as nonpartisan, expert election administration. Because of their ostensibly legal, even legalistic, character, however, these forms of election subversion complicate ordinary judicial countermand. Federal courts, in particular, have foreclosed many of their own means of responding to such measures. This essay, written for the University of Wisconsin Law School Symposium on Interpretation in the States, describes why state courts are well situated to counter the new election subversion. Building on our prior work exploring the democracy principle in state constitutions, we explain how the text, structure, and history of states’ foundational documents privilege popular sovereignty, majority rule, and political equality. After canvassing emerging threats to elections across the country, we then explain how state courts might apply the democracy principle to address the new election subversion. People rely on judicial decisions to form expectations about their legal rights and duties, and accordingly to structure their lives and form their understandings of society and their place in it. This is one of the main reasons why courts follow precedent—to protect the reliance interests of those subject to the law. Despite widespread reliance on the precedents protecting the right to abortion, in Dobbs the Supreme Court declines to recognize those interests. This move represents a shift in the Court’s stare decisis jurisprudence, and would seem to overrule Casey v. Planned Parenthood as a precedent about precedent. This Article illuminates the treatment of stare decisis in the Dobbs majority opinion, focusing on its approach to reliance. I explain why the Justices joining that opinion determined that whatever reliance interests had attached to the right to abortion were completely irrelevant for the purposes of their stare decisis analysis. The Justices’ refusal to recognize the reliance interests at stake here, I argue, is inconsistent with the Court’s previously prevailing stare decisis doctrine and, in light of the values underlying our system of precedent, is also mistaken as a matter of first principles. Professor Maria Paula Dallari Bucci and Professor William Clune have been collaborating on law and public policy (LPP) for about a year. This article is an effort to pull the previous work together, explain LPP in clear terms, discuss the skills and knowledge required for practitioners and researchers, and summarize research designs and methods appropriate for LPP research studies. For the full text of these works and additional scholarship from UW Law faculty and staff, visit the University of Wisconsin Law School Legal Studies Research Paper Series on SSRN. A free email subscription is available at the top right of the page.