Another Electoral College Entrenchment Problem

The other big electoral reform in vogue is the idea of splitting electors within a state, as is done in Maine. Instead of a winner-take-all system, in which all of a state's electors go to the candidate with the most votes (majority or plurality), a split system would divide up the electors.

There are a few ways to do this. In Maine, they do it geographically, effectively creating two "mini-states" within Maine, each with a winner-take-all system. Insofar as these two regions might have different political interests, this gives the two parties a greater chance to win at least some of Maine's electoral votes, even if they could not win the whole state.

The other obvious way is a proportional system. In a state with 10 electoral votes, a candidate wins one electoral vote for every 10% of the state's popular vote. In a 50-50 tie, each candidate gets 5 electoral votes. I don't know how this would work in terms of rounding (is 54-46 a 5-5 tie, or a 6-4 majority? What about 55-45? 56-46?), but I'm sure someone else has figured that out.

These systems seem really attractive because they avoid one of the major obstacles to national reform of the electoral college: there is no need to amend the Constitution. In fact, since the state legislatures are specifically given control over choosing their electors in the Constitution, each state legislature is capable of making this reform on its own. This is an appealing approach for those who, like me, see national reform via constitutional amendment as a non-starter on this issue.

But I must say, with an ever heavy heart, I'm not convinced that reform via the state legislatures is likely to be much more successful. Once again, we have an entrenchment problem, though this time it IS a partisan one. The problem here is that whichever party is in control of a state's legislature is likely also the party which benefits from that state's winner-takes-all system.

Take an easy example like Utah. Now Utah has 5 electoral votes, and the race is currently polling roughly 65%-25% for Bush. Under the current winer-takes-all system, Bush wins all 5 electoral votes. In a proportional system, Kerry would likely pick up one of those electoral votes, giving Bush the other 4. Sounds great, right? Finally, everyone's vote means something!

But who needs to approve that change? The Utah state legislature, where Republicans outnumber Democrats 56-19 in the House and 22-7 in the Senate. Is there any reason to think that those Republicans are going to vote to change the system in a way that guarantees a loss of electoral votes for their party? Particularly when there is no guarantee of reciprocity from Democrat-controlled state houses? No, of course not. And the same would obviously be true in Rhode Island or Massachussetts or Idaho, etc.

As such, the only state legislatures that would consider such a reform would be those controlled by a party that is NOT expecting to win in the winner-takes-all system. And there are such states. Democrats control the legislatures in Oklahoma, Louisiana, Mississippi, Tennessee and West Virginia, all states which went to Bush in 2000. Republicans control the legislatures in Iowa, Michigan, Pennsylvania, and Wisconsin, all states which went to Gore in 2000. So why don't these legislatures change systems to better favor their party?

Well there are multiple possibilities, none of which are mutually exclusive. The first and most obvious would be that sometimes the interests of state parties and national parties do not coincide. The very fact that voters in a state elects a Democratic legislature and a Republican President might indicate that the state representatives of the Democratic party are closer to the middle or to the right. As such, they themselves might not in fact favor a system which would increase chances of a Democratic president.

Or perhaps they only retain power in that state through long-standing tradition or entrenchment, and do not want to do anything that sufficiently upsets the state electorate. If a majority votes for a Republican candidate, that same majority probably wants that candidate to get ALL of the electoral votes, not just some proportion. So they might be upset if the legislature tries to change the system to harm their candidate.

In addition, it is possible some of these "inconsistent" states will not be inconsistent for long, as the state will shift its electoral vote. Pennsylvania and Wisconsin are very much up in the air this year, so perhaps the Republican majorities in those legislatures will soon be reflected in their electoral results. The legislature would be shooting itself in the foot if it switched to a proportional system only to see their candidate take a plurality or majority of the vote.

The point is, entrenchment is hard at work in this area. Somebody benefits from the current electoral vote system in each state, and in this area it happens to be almost always the same party that also controls the decisionmaker, the state legislature. With very little incentive to change the status quo, the status quo will remain.

No More Electoral College?

I've stayed out of the election talk almost entirely, and don't really plan on starting now. However there has been a lot of egghead discussion about the possibility of eliminating the electoral college if we get another election where the popular and electoral votes point in different directions. See, for example, Matthew Yglesias:

Speaking seriously, a Kerry win without the popular vote would probably create a real chance to eliminate the electoral college, since both parties would have tasted its wrath in recent memory and neither would have any particular love for it. That, I think, would be a good thing.

There are two points to be made here, I think. The first is that I'm quite sure there is NO real chance to eliminate the electoral college. Contrary to Yglesias' inference, support for the electoral college probably falls either on a small state / large state axis, or on a battleground state / non-battleground state axis (or some combination thereof), not on any partisan one that I can think of. And some people, believe it or not, actually have principled positions on the matter. I would not have supported abandoning the electoral college in 2000, and I won't support it in 2004, regardless of the outcome.

The even bigger obstacle, of course, is that it requries amending the Constitution. We're not talking about getting a slim majority in both houses of Congress with the signature of a President who just won under the current system. We're talking about overwhelming majorities both in Congress and in the state legislatures. And that's a rather different undertaking, almost doomed from the start. There's a pretty simple entrenchment problem. As much as the current system upsets some, it also gives a lot of power to others. The latter don't have much incentive to give up the status quo, and I don't think another close election will alter their incentives much.

Small, battleground states get far more attention than they would in a popular national election, and small uncontested states will probably be ignored just as much as they are now (likely too few votes to justify the expense). Hard to get 38 states to approve a dramatic, unpredictable constitutional change that either decreases or has no positive effect on their power.

The second point is that I am not at all sure that eliminating the electoral college would be a good thing. I'm not sure that it would be bad, but I think it is more complicated than most people really think. I started this post thinking I would go into a long litany of potential problems, but I've not thought it through as well as I like, and will save it for another day.

The little I can add right now might be to suggest that though a historical understanding of the electoral college's creation is not as relevant as one might hope, it might give some insight.

What Madison was most afraid of was not direct popular election on a national scale, which modern anti-electoral college advocates desire. That wasn't even an option back then, it would have been a laughable proposition. Instead, what he was fighting against was the proposal that the president be elected directly by the state legislatures. He feared, rightly so, that if a president were elected by state legislatures, and was eligible for re-election, thrn he would become a puppet of those legislatures. And since the nationalist Madison of 1787 was most concerned with correcting the abuse of power by state legislatures, this was a non-starter.

So he crafted an ingenious compromise, in which a new body would be formed for the sole purpose of electing the president, and would be immediately dissolved thereafter. It would have none of its own institutional desires for power, and no capacity for such.

The state legislatures were given responsibility for deciding the process for creating this body, but it would be some time before popular votes for electors even took hold within the states. But just keep in mind that the debate over the electoral college in 1787 does not look much like the debate about it now.

I don't know if that adds anything to the discussion, but it has been on my mind.

Wenger Signs New Contract

Sure, the loss to ManU was disappointing. But every streak has to come to an end. 49 games in a row undefeated, including an entire season... yeah, that's pretty good. And here comes more good news:

Arsenal manager Arsene Wenger has signed a new contract to stay at the club until May 2008.

Wenger has ended speculation about his future by agreeing a long-term contract that takes him beyond the opening of Arsenal's new stadium in two years.

He said: "Signing a new contract just rubber-stamps my desire to take this club forward and fulfil my ambitions.

"I still have so much to achieve and my target is to drive this club on. These are exciting times for Arsenal."

Yes, they are. It is a great time to be an Arsenal fan. They are playing beautiful football and having fun doing it.

What I Really Want For Christmas

Just in case anyone was unsure of what to get me for Christmas, maybe a few of you can pitch in for this:

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Only $5,250! That's a full 30% off. My thanks in advance.

Film Section

I think the aspect of my recreational life least represented on this website is my love of film, movies, cinema, what have you. It is hard to say what early exposure was most influential in developing this interest (I'll have to ask my mother), but my memory provides two vivid recollections: The Neverending Story and Star Wars. Since I was born in 1980, the latter came to me via television, and I can still remember quite clearly the VHS copy that my grandfather had of the movies, recorded off some local Chicago station. So clearly, in fact, that I still find it a bit unusual to watch Star Wars without commercials. I can identify the exact moment when each commercial break is supposed to come.

As for The Neverending Story, it would almost have been a miracle for me not to fall in love with that movie. A skinny little bookworm like me? Suffice it to say that it was that movie which proved to me once and for all that a great film can take you right out of this world at least as well as the best books.

So to coincide with my renewed interest in film (which itself coincides with my signing bonus and the return of a little disposable income), I've begun working on a new film section for the website. Whether it will ever contain more than a list of the DVDs I own, I cannot say. I hope so. For now, that will have to do. And for those who question the opening of a film section while the music section remains as dormant as ever... well, it's my website and I'll do what I want.

Posner on Law Reviews

Law review articles about law review articles are a perennial favorite, and Richard Posner's recent article in Legal Affairs (which has the Virginia Law Review all abuzz with righteous indignation) is more of the same. Unsurprising for those who know me and my feelings about academic legal writing, I agree with almost all of his criticisms. The key paragraphs:

The result of the system of scholarly publication in law is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well´┐Żarticles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts. Law reviews do extensively analyze and criticize the constitutional decisions of the Supreme Court, but the profession, including the judiciary, would benefit from a reorientation of academic attention to lower-court decisions. Not that the Supreme Court isn't the most important court in the United States. But the 80 or so decisions that it renders every year get disproportionate attention compared to the many thousands of decisions rendered by other appellate courts that are much less frequently written about, especially since justices of the Supreme Court are the judges who are least likely to be influenced by critical academic reflection on their work.

I have spoken thus far of the law reviews as publishers of scholarly articles submitted to them. But in addition, of course, they publish articles (usually and misleadingly called "notes" or "comments") written by the members of a law review's staff. The opportunity to publish provides valuable experience. This, plus the rising quality of law students, may explain the enormous increase in the number of law reviews´┐Żlaw schools that used to have just one now often have two and sometimes three or four. My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis.

But the need for reform centers on law reviews' role in publishing professorial articles, and the biggest obstacle to reform is that the present system provides useful training for law students and signals the quality of particular students to prospective employers. The law review editors tend to be the elite of the student body; prospective employers know this and so the elite students tend to be sorted to the elite firms. This service function of law reviews is so important, and the rapid turnaround of submissions is so valued by law professors, that I do not anticipate fundamental reforms, desirable as they may be in the abstract. Ideally, one would like to see the law schools "take back" their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.

I think one could say that Posner directs too much of his attack against students, and not enough against his peers and academic institutions. That said, I don't find much to disagree with.

UPDATE: A colleague from VLR responds:

I would be fine with his article on law reviews if only he didn't come off so arrogantly. The system might be far from perfect, but where does the blame really lie? At some points in his article, it seems like Posner actually places blame on students. It's not our fault that we've inherited this system - if professors wanted to take away control over law reviews, it's not like we could stop them. But Judge Posner is fond of biting" commentary, so we should expect nothing less.

I will also note for the record that under the leadership of our current editor-in-chief, we do try to cut down on footnotes rather than add to them, and we no longer require parentheticals. In addition, we've made an effort to accept shorter pieces.

There you have it. Not a cure-all for the structural defects of the system, but at least a sign that maybe law students are not really the cause of the problem, and thus not the proper target for attack.

Ignorance Revealed

Perhaps the most astonishing thing about reading so many novels is the depth and breadth of my own ignorance that is revealed. Each book leads to whole new areas of knowledge that I want to explore, and there is something rather somber about realizing there's not time enough for them all. Case in point, having just finished both of Alan Paton's novels, Cry, the Beloved Country and Too Late the Phalarope, I have an intense curiosity about the origins of South Africa. Keep in mind that both of his novels date from the early years after World War II, and both I believe (though I'm only sure about Cry) were written before the 1948 Nationalist victory and the apartheid system that resulted. So in one sense, there is curiosity about what happens after the books, what it was that ended Paton's career as a novelist so he could focus on political issues, what became of the underlying tensions in his novels that serve really as ominous dramatic irony to the reader, who knows even more than the novelist himself the darkness to come.

But the greater curiosity is actually about what happened to make South Africa the place depicted in his books. This would require stretching all the way back to the Dutch and British colonizations, the Boer War, and the subsequent efforts at conciliation, largely it seems at the expense of the natives. Anyhow, this is a recurring phenomenon for me, as it is I'm sure for many who spend much of their time reading. The pursuit of knowledge reveals as much ignorance as it cures. Strangely, it is both unsettling and deeply satisfying to know that this is an endless quest.

Law Students Write Country's New Criminal Code

What an amazing opportunity. A seminar at Penn Law is spending the semester writing the new criminal code for a small, Islamic island:

Professor Paul Robinson's fall seminar at the University of Pennsylvania Law School offered a unique opportunity for the ambitious student: a chance to make law, rather than just study it.

But there was a catch. The students' client would be a regime that has outlawed dissent, jailed pro-democracy demonstrators and been accused by Amnesty International of "endemic torture and unfair trials."

As part of a project sponsored by the United Nations, the class's sole task would be to craft an updated crime code for the Republic of Maldives, an island nation of 278,000 people in the Indian Ocean.

The code was to be based on the Shariah, a body of Islamic law that fundamentalist nations have used to subjugate women, crush free religious expression and impose personal behavior laws criminalizing homosexuality, alcohol consumption and sex outside marriage.

Not everybody is pleased. Daniel Pipes, quite a controversial figure himself, suggests anything based on Shariah, or used to assist the Maldivian government, is illegitimate. And there does seem to be something rather incongruous about the Maldivian government reaching out like this at the same time they are suppressing dissent at home. Nonetheless, it seems like an opportunity for much more good than harm, and clearly a great experience for the students involved.

Book Lists, Now With Amazon Links

I'm not sure if it will be of any benefit to anyone but me, but I have edited all of the book award and list pages in my book section to include a link to each book's Amazon page (e.g. the Pulitzer Prize for Fiction). Though I would get a small commission in the rare event anyone bought a book through these links, their real purpose is to provide easy access to the reader reviews at Amazon. I just got tired of cutting and pasting book titles from the lists to the Amazon search engine, so I spent a few hours on this project while watching the Star Wars trilogy on DVD.

Oh, and the Shakespeare project is still ongoing... it just got a bit sidetracked by a fellow named Dostoevsky, and a little book called Crime and Punishment. Shakespeare is great, but there are only so many of his plays one can read in a week. So I'm pushing back the target completion date until the end of the school year. Finish law school. Finish Shakespeare. Not necessarily in that order.

Baker Botts

A very interesting article in today's American Lawyer about the new appellate practice at Baker Botts in Washington. I had the pleasure to spend most of this last summer working for Jeff Lamken and Mark Stancil, who are leading the new practice:

The 164-year-old law firm Baker Botts is known for many things, but a significant U.S. Supreme Court practice has not been one of them. Which is why, when the firm announced in July that it had hired three Supreme Court clerks fresh out of their year at the Court -- with the possibility of a fourth and fifth clerk coming over too -- it came as a considerable surprise. Most of the veteran Supreme Court firms consider themselves lucky if one or two clerks sign on in a given year. So why would three or more clerks who could write their own tickets at almost any firm choose to climb aboard at Baker Botts?

The answer goes back nearly five years and tells the story of how a venerable law firm goes about launching a Supreme Court practice, even at a time of fierce competition for a shrinking number of cases. It also shows how, in the process, a firm can rejuvenate and energize a prestigious part of its business. The next generation of top Supreme Court advocates may be assembling at Baker Botts.

Though I likely won't be returning to the firm any time soon (I'm looking in Atlanta for a six-month stint before I head to the JAG school and four years in the Army), I can't wait to see how the practice develops.