Examining Parties as Procedural Cartels: Evidence from the U.S. States

Procedural cartel theory states that the majority party exerts influence over legislative outcomes through agenda control. This research tests predictions from the party cartel theory in five state legislatures. I assess party influence through comparison of term‐limited and nonterm‐limited legislators. I argue that term‐limited legislators (who are not seeking elective office) are no longer susceptible to party pressure, making them the perfect means to determine the existence of party influence. The results demonstrate that party influence is present in these legislatures. I find that party influence is magnified on the procedural, rather than final‐passage, voting record which is precisely where procedural cartel theory predicts. I find lower levels of ideological consistency and party discipline among members for whom the party leadership offers the least—those leaving elective office. These results provide support for party cartel theory, demonstrating further evidence of how parties matter in modern democracies.     

The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems

The concept of proportionality has been central to the retributive revival in penal theory, and underlies desert theory's normative and practical commitment to limiting punishment. Theories of punishment combining desert‐based and consequentialist considerations also appeal to proportionality as a limiting condition. In this paper we argue that these claims are founded on an exaggerated idea of what proportionality can offer, and in particular fail properly to consider the institutional conditions needed to foster robust limits on the state's power to punish. The idea that appeals to proportionality as an abstract ideal can help to limit punishment is, we argue, a chimera: what has been thought of as proportionality is not a naturally existing relationship, but a product of political and social construction, cultural meaning‐making, and institution‐building. Drawing on evolutionary psychology and comparative political economy, we argue that philosophers and social scientists need to work together to understand how the appeal of the idea of proportionality can best be realised through substantive institutional frameworks under particular conditions.     

The asymmetries of pouvoir constituant mixte

This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of citizens of nation‐states and that of (the same) citizens as subjects of the future EU. I argue that Habermas's theory is convincing only if the two constitution‐building subjects—citizens of the already constituted nation‐states and citizens of the to‐be‐constituted European Union—are positioned symmetrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I identify three asymmetries: of expectations, of function and of origins. I argue that these asymmetries place the role of citizens as members of nation‐states in such an advantageous position that it would be irrational for citizens in their other capacity, as citizens of the to‐be‐constituted European Union, to participate in the constituent authority in the terms proposed and defended by Habermas.     

Preventive Justice and the Presumption of Innocence

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence. After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority—the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense. Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.     

The Political Origins of English Private Law

The article seeks to explain the emergence of the view that English law contains a fundamental divide between public and private law. I propose to explain the divide, not as a conceptual distinction, grounded in the internal rationality of law, but as a response to the potential problem of political legitimacy arising from the fact that in the domain of private law courts are constantly engaged in making substantive law. That by itself shows that the divide between public and private law is politically motivated, but I further argue that the prevailing view of law among proponents of the divide revives Dicey's conception of the common law within the narrower domain of private law. Since Dicey's views are widely believed to be motivated by his political views, if I am right, this lends support to the conclusion that the views of defenders of the divide are grounded in similar political positions.     

On the Puzzle Surrounding Hans Kelsen's Basic Norm

Whereas fundamental norms in the juridico‐philosophical tradition serve to impose constraints, Kelsen's fundamental norm—or basic norm (Grundnorm)—purports to establish the normativist character of the law. But how is the basic norm itself established? Kelsen himself rules out the appeals that are familiar from the tradition—the appeal to fact, and to morality. What remains is a Kantian argument. I introduce and briefly evaluate the Kantian and neo‐Kantian positions, as applied to Kelsen's theory. The distinction between the two positions, I argue, is reflected in an ambiguity in the use of the term “regressive.”     

Incorporating consensus and conflict into the legitimacy of law

Recent research on the legitimacy of law is dominated by the confirmed effect of procedural justice on views of legitimacy. The procedural justice research, however, neglects the substantive component of law and how that substance may conflict with value systems of the various subcultures that constitute a complex society. This paper reviews classic and contemporary theory, as well as supporting empirical criminological research, in order to argue that views of the legitimacy of a given law can also be affected by such conflicting value sets. Allotting subculture a central influence, a model is proposed that integrates a sociological conception of the legitimacy of law with the existing research from psychology on procedural justice.     

Constitutionalising EU Executive Rule‐Making Procedures: A Research Agenda

The existence or non‐existence of procedural rules for executive rule‐making in the EU is not merely a ‘technical’ question free of constitutional value choices. This article argues that constitutional principles, such as transparency, openness and participatory democracy, highlighted by the Treaty of Lisbon constitute decisive normative standards for the design of administrative procedures in the EU, with a considerable impact on substantive outcomes. We apply such principles to executive rule‐making procedures in the EU, highlight the salience of this discussion and argue that systematisation of executive rule‐making procedures is needed in order to implement constitutional principles in a complex and plural environment.     

A Critique of Alexy’s Claim to Correctness

This article offers an overview of the difficulties in Robert Alexy’s idea of law’s “claim to correctness.” The inquiry takes us deep into the nature of simple communication, back out to what it means to have a theory about the nature of law, and also in the direction of wondering about the interaction of legal theory and practical reasoning—reasoning about how we should best act. The article offers reasons to question whether law in fact makes claims, at least in any straightforward sense. Even if one brackets that matter, there are reasons to raise doubts about what is in fact implicit in the act of lawmaking. At one level, an act of lawmaking does implicitly assert the authority to act in that way. Whether it also implies that the content of the action is morally good, or at least not clearly morally bad, is, at a minimum, a harder question.     

Parties and Institutional Choice Revisited

Scholars of institutional change in Congress offer competing theoretical accounts of the accrual of procedural rights by House majority parties. One camp posits that the interests and capacities of political parties drive procedural change that affects agenda control. An alternative perspective offers a nonpartisan, median‐voter account. I explore these two accounts, survey challenges involved in testing them, and determine the fit of the accounts to the history of procedural change in the House. I find that no single perspective accounts best for the pattern of rule changes affecting agenda control and that the median‐voter model may be time‐bound to the twentieth century—after partisan majorities had constructed the core partisan procedural regime of the House.     

The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

Measuring Partisan Bias in Single‐Member District Electoral Systems

In recent decades, the literature has coalesced around either symmetry or responsiveness as measures of partisan bias in single‐member district systems. I argue neither accurately captures the traditional idea of an “efficient” gerrymander, where one party claims more seats without more votes. I suggest a better measure of efficiency and then use this new measure to reconsider a classic study of partisan gerrymandering. Contrary to the original study findings, I show that the effects of party control on bias are small and decay rapidly, suggesting that redistricting is at best a blunt tool for promoting partisan interests.     

How Policy and Procedure Shape Citizens' Evaluations of Senators

I report findings from survey experiments that improve our understanding of how people want individual Senators to approach their role as representatives. The findings show that people are committed to the idea that Senators should prioritize their states' preferences over those of the national public. This preference persists in situations where a Senator's advocacy for her state plays a key role in defeating nationally supported legislation. This finding contradicts popular claims that voters are hungry for Senators who prioritize national preferences over those of their constituents. I also find that people who support a piece of legislation—but not those who oppose it—evaluate a Senator who helps to defeat the legislation by filibustering substantially less favorably than one who accomplishes the same ends through majoritarian means. This suggests that how people respond to some procedural characteristics of politicians' behavior depends on how they feel about the outcomes it yields.     

Privacy law as price control

The median Internet user is concerned about digital advertisers collecting personal information. To address these fears, the European Union passed the Privacy Directive to regulate the common business practice of information collection. This paper investigates the potential effects of this regulation, finding that the law is likely to generate several unintended consequences. Economists and legal scholars acknowledge that personal data serves as the “price” for accessing many digital platforms. I extend this logic to argue that if a regulation enables consumers to stop supplying this information, while continuing to consume the site’s content, it is equivalent to a price control. Next, I discuss unintended consequences that this price control may generate: tie-in sales, investment flight, and altered exchange characteristics. Lastly, I conclude that, just as with traditional price controls, the privacy price control may be a way for government officials to enhance their popularity with the citizenry. In short, my analysis suggests that one of the most well-researched policy interests of economics—the theory of price controls—can shed light on one of economists’ newest interests: digital privacy.     

Bilateral Investment Treaties,Credible Commitment,and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?

A long line of research, beginning with Macaulay's (1963) well‐known study of “Non‐Contractual Relations in Business,” suggests that the formal trappings of domestic law often have effects on private behavior that are, at best, “indirect, subtle, and ambiguous” ( Macaulay 1984 :155). Law and society scholars have spent somewhat less time exploring whether international law's effects on behavior are similarly attenuated. In this article I examine whether foreign investors take the presence of strong formal international legal protections into account when deciding where to invest. I focus on whether the presence of bilateral investment treaties, or BITs, meaningfully influences investment decisions. I present results from a statistical analysis that examines whether the formally strongest BITs—those that guarantee investors access to international arbitration to enforce investors' international legal rights—are associated with greater investment flows. I find no clear link between treaty protections and investment, a finding consistent with past law and society research but in tension with claims common in the BIT literature that the treaties should have dramatic effects on investor behavior.     

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

The Borrowed View: Privacy, Propriety, and the Entanglements of Property

A dominant characterization celebrates property as a means to attain privacy and autonomy. Drawing on recent scholarship, I compare this idea with a proprietarian perspective, which emphasizes the ways in which private ownership comes freighted with public responsibilities. The garden, I shall argue, reveals both dimensions to property. Drawing from gardening debates over the past century and an empirical survey of gardening in Vancouver, Canada, I conclude by arguing, first, that the ends of property are more diverse than we suppose, and second, that these two conceptions should in fact be thought of not as incompatible and opposed, but as entangled and interrelated. While judicial and academic evaluations tend to rely on a binary view of property, so that privacy and propriety seem to live in different spaces, my findings suggest a more fluid cohabitation.     

“It Depends on the Outcome”: Prisoners,Grievances, and Perceptions of Justice

Social scientists have long investigated the social, cultural, and psychological forces that shape perceptions of fairness. A vast literature on procedural justice advances a central finding: the process by which a dispute is played out is central to people's perceptions of fairness and their satisfaction with dispute outcomes. There is, however, one glaring gap in the literature. In this era of mass incarceration, studies of how the incarcerated weigh procedural justice versus substantive justice are rare. This article addresses this gap by drawing on unique quantitative and qualitative data, including face‐to‐face interviews with a random sample of men incarcerated in three California prisons and official data provided by the California Department of Corrections and Rehabilitation (CDCR). Our mixed‐methods analysis reveals that these prisoners privilege the actual outcomes of disputes as their barometer of justice. We argue that the dominance of substantive outcomes in these men's perceptions of fairness and in their dispute satisfaction is grounded in, among other things, the high stakes of the prison context, an argument that is confirmed by our data. These findings do not refute the importance of procedural justice, but show the power of institutional context to structure perceptions of and responses to fairness, one of the most fundamental principles of social life.     

Reconciling Independence and accountability at the European Central Bank: The false promise of Proceduralism

This article revisits the balancing act between independence and accountability at the European Central Bank (ECB). It contrasts procedural and substantive concepts of accountability, and challenges the mainstream idea that independence and accountability can be reconciled through narrow mandates, the indiscriminate increase of transparency, the creation of multiple channels of accountability, and the active use of judicial review. These assumptions form the pillars of a procedural type of accountability that promises to resolve the independence/accountability dilemma but fails to do so in practice. The article brings evidence to show how ECB accountability has become a complex administrative exercise that focuses on the procedural steps leading up to monetary and supervisory decisions while simultaneously limiting substantive accountability. The failure to acknowledge the trade‐off between independence and accountability (said to be ‘two sides of the same coin’) has resulted in a tendency to privilege the former over the latter.     

民事诉讼当事人概念与更换研究

当事人概念在学理上经历了从实体到程序转变.直至目前,程序当事人概念已经在理论上得到广泛认同,然而我国立法与司法实践对于当事人概念的处理却尚未与理论接轨,理论、立法和实践三者间的关系显得混乱.基于程序当事人概念在具体司法操作过程中的不足,我们应提出和引进并且完善当事人更换制度予以弥补并构建一套完整的当事人理论和制度.