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Steven Mulroy

Offers concluding thoughts about where to go from here.

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Rethinking US Election Law

Unskewing the System

Steven Mulroy

Recent U.S. elections have defied nationwide majority preference at the White House, Senate, and House levels. This work of interdisciplinary scholarship explains how “winner-take-all” and single-member district elections make this happen, and what can be done to repair the system. Proposed reforms include the National Popular Vote interstate compact (presidential elections); eliminating the Senate filibuster; and proportional representation using Ranked Choice Voting for House, state, and local elections.
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Massimo Fichera

In this insightful book, Massimo Fichera provides an original account of European integration as a process. He argues that European constitutionalism has been informed from its earliest stages by a meta-rationale, which is expressed by security and fundamental rights as discourses of power. Employing this descriptive and normative conceptual framework to analyse the development of the EU as a polity, chapters cover significant recent events such as the Eurozone crisis, the refugee crisis, the rule of law crisis, Brexit and the constitutional identity crisis.
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Massimo Fichera

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Frank Vibert

This chapter examines the role of ‘rights’ in providing guidance for complex normative choices in modern democracies. It distinguishes the role of rights in guiding policy choices from their role in providing the underpinning for the legitimacy of constitutions. It draws on search market theory to discuss the role of rights as benchmarks. Benchmarks help to make choices by assembling what is relevant to a choice, facilitating comparisons and by pointing to anomalies in valuations. The analysis distinguishes between procedural rights and substantive rights applying to socio-economic and environmental conditions. It makes an analogy with the role of benchmarks in financial markets. It suggests that the problems associated with narrowing, oversupply, manipulation and moral hazard that apply to benchmarks in financial markets apply also, for different reasons, to substantive rights claims used as benchmarks in non-market choices.

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Frank Vibert

This chapter opens a discussion continuing over the next three chapters that refines the challenges faced in reshaping the content of modern democratic constitutions. It considers three different possible starting points for thinking about constitutional content: goals, civic purpose and underlying motivation. It selects motivation as the starting point. It identifies a bundle of motives: material, emotive and normative that reflects the social context of constitution making. It identifies the different ways in which the different motives can be expressed in constitutional provisions. It establishes the importance of bounded rationality in a constitutional context.

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Frank Vibert

This final chapter brings together the components needed to upgrade constitutions so that they will provide the support that democracies need in the modern world. First, they need to extend their base so as to ensure common knowledge about all actors who wield authority in today’s world. Secondly, they need to provide more stringent path rules in order to bring together the content-lite reasoning of a democratic politics with the content-based reasoning of the law and expert bodies. Thirdly, they need to provide additional institutions to correct for the blind spots of democratic politics, notably a body concerned with intergenerational equity and a body concerned with constitutional oversight. Fourthly, they need to take a more parsimonious approach to assertions of rights and include mainly only procedural rights. Finally, they need to reaffirm the importance of consent through the use of referendums for policy and constitutional questions.

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Frank Vibert

This chapter first discusses the typically ‘ill-structured’ setting for public policy management. Secondly, it considers different approaches to better structuring of the setting. This involves the segmentation and compartmentalization of tasks and parallel processing between loosely connected organizations. From the perspective of democratic organization, it requires that constitutions provide common knowledge of all the new actors with authority and their arenas.

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Frank Vibert

This chapter sets out the reasons for the (almost) universal adoption of constitutions and the different ways of summarizing their intent in a democratic context (contracts/constraints and so on). It then discusses the separation that has occurred between discussions of constitutions and discussions of democracy. Among the reasons for this separation, subsequent discussion takes up the possibility that constitutions have simply lost their relevance in modern conditions. Finally, it distinguishes between key structural elements in a constitution – the foundational, the canonical and the purposive.

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Frank Vibert

This chapter continues the discussion of how democratic constitutions can address the issue of deep social differences in shared physical settings. It looks at three dimensions of difference: the spectrum of diversity; the range of effect on others; and the variety in the reaction of others to these external effects. The analysis takes a cognitive/behavioral perspective. The chapter concludes the discussion of how traditional constitutions are no longer suited to modern conditions.