Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
Steven F. Huefner, What Can the United States Learn from Abroad about Resolving Disputed Elections, 13 N.Y.U. J. OF LEGIS. & PUB. POL. 523 (2010).
In this article, Steve conducts a comparative analysis of the means democracies around the world use to resolve contested elections. This is an understudied topic, and the reason may be the difficulty of the task Steve admirably takes up. The article takes us from Afghanistan, to Mexico, to Ukraine, and on and on. Steve carefully describes and groups the different approaches to election disputes, particularly presidential elections, and subjects them to analysis of trends of adoption and record of success (or failure).
Steve groups the different kinds of election dispute resolution institutions into four basic categories: “(1) traditional courts, including constitutional courts, (2) legislatures and parliaments, (3) special electoral tribunals, and (4) ad hoc bodies.” The article makes a number of observations about these different approaches. The American model of relying on traditional courts is popular worldwide, as part and parcel of the export of “American-style democracy.” Steve observes, however, that countries following this model may fail to appreciate the political influence felt even by independent judiciaries (as, Steve notes, Ned Foley has shown our framers did), with the result that such adopters “may be perpetuating a design flaw of American democracy.” The article sees much promise in special electoral tribunals, noting their success in emerging democracies, and considers the lessons for U.S. electoral reform.
Steven F. Huefner, Congressional Searches and Seizures: The Place of Legislative Privilege, 24 J. L. & POLITICS 271 (2008).
The U.S. Constitution provides that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” The “Speech or Debate Clause” received increased attention recently as a result of the FBI’s unprecedented search of the congressional office of then-Representative William Jefferson as part of an investigation that led to Jefferson’s indictment on bribery and other charges. In this article, Huefner provides a thorough historical, doctrinal and theoretical study of the Speech and Debate Clause to determine the appropriate scope of the privilege it provides to lawmakers – in particular, in addition to the absolute immunity it provides against both civil and criminal liability for representatives’ legislative work, the extent to which the Clause bars executive searches.
Huefner’s conclusion on this ultimate issue holds a middle ground: within the Congressional Office buildings, a presumption of privilege against search should prevail that could only be overcome in certain, limited, circumstances. While not seeking an absolute privilege, the article’s approach would provide more protection in this particular context than lower courts have recognized to date. Huefner uses the Clause’s evident purpose to protect a robust legislative branch and interpretations of the Clause in other contexts to defend this interpretation, while thoroughly exploring alternatives and potential critiques of his argument.
Steven F. Huefner, Don’t Just Make Redistricters More Accountable to the People, Make Them the People, 5 DUKE J. OF CONST. L. & PUBLIC POLICY 37 (2010).
This symposium contribution considers methods of creating an apolitical resdistricting process. (While noting questions about the desirability of creating such process, the article presumes for its discussion that doing so would be desirable.) By apolitical redistricting, Steve means “redistricting that is not allowed to intentionally promote the broader partisan political interests of those controlling the redistricting,” as opposed to a different meaning---redistricting that is simply blind to partisan consequences. The article pays close attention to extant redistricting experiences and the records of efforts to depoliticize the process, including description of current efforts in California and Ohio. One conclusion Steve draws from this analysis is that “[w]hen redistricting criteria are presented prepackaged by a particular reform community, they can be easy targets for opponents to attack,” since almost all “potential criteria has some vulnerabilities to be exploited,” prone to be “rejected as ‘elite’ meddling.”
One alternative, Steve suggests, would be more politics, rather than less. Steve suggests the successful path will involve a “citizen-led redistricting institution,” such as a citizen assembly or some sort of public mapmaking competition. Difficult as this may be to envision, Steve emphasizes that other reform efforts have regularly failed and that this approach could overcome some of the vulnerabilities that have led to those failures, particularly the low political salience of redistricting among the general public and “public skepticism towards elite and unaccountable commissions.” Steve applies these insights to the recent efforts in California and Ohio, including the Joyce Foundation’s current campaign for “Accountable Redistricting” that Election Law @ Moritz is participating in.
Steven F. Huefner, Just How Settled Are the Legal Principles that Control Election Disputes?, 8 ELECTION L. J. 233 (2009).
“Much less settled than the book’s author would lead you to believe” summarizes Steve’s answer to the titular question posed in his review of the second edition of Barry Weinberg’s THE RESOLUTION OF ELECTION DISPUTES: LEGAL PRINCIPLES THAT CONTROL ELECTION CHALLENGES. The review describes Weinberg’s book, originally published in 2006, as the first of its kind in the understudied field of post-election remedies (a field to which both Steve and Professor Edward Foley have subsequently made significant contributions). The book is organized around six chapters which use digests of 58 state election cases to present “a set of legal principles governing election contests.”
While praising the book as a “useful reference work and primer on key issues,” the review expresses concern with the book’s pronouncement of “definitive legal propositions” (e.g., courts lack jurisdiction if a fundamental statutory procedure has not been satisfied, and “there is no common law basis for an election challenge”) that are, in some instances, supported only by anecdotal evidence of selected cases and, with regard to some, are overstated, contested across states, or wrong. While Steve considers that such summaries overlooking nuance and variation may be useful for emerging democracies, a “key audience for IFES publications” such as this one, more caution is needed for the domestic user than the too-little-too-late caveat in the book’s conclusion provides. Separately, Steve questions the book’s omission of any discussion “of proportional deduction as a possible remedy for unlawful voting when the beneficiary of specific unlawful votes cannot be identified.”
Notwithstanding these criticisms, Steve considers the book a rich set of materials for discussion by teachers and students and a useful idea-facilitator for election lawyers in what remains an under-served area.
Steven F. Huefner, Daniel P. Tokaji, & Edward B. Foley (with Nathan A. Cemenska) From Registration to Recounts Revisited: Developments in the Election Ecosystems of Five Midwestern States (2011)
This 90-page report is a follow-up to 2007's widely acclaimed study by the authors of the election-administration response in five key Midwestern states (Illinois, Michigan, Minnesota, Ohio, and Wisconsin) to the Help America Vote Act of 2002. The report provides objective and insightful analysis into developments in election administration institutions and culture, “convenience voting” (e.g., early voting), other legislative changes (e.g., voter I.D. laws), post-election processes (including a close look at the resolution of the very close 2008 Minnesota senate election) and voter registration and databases (in which a federal “matching” requirement has produced much litigation).
In canvassing these areas, the authors continue to evaluate systems on three core values: “access, integrity, and finality.” On these criteria, the report documents both successes and failures over the past four years, though much work clearly remains to be done. The report points to specific areas of vulnerability (e.g., Illinois badly needs reform of its post-election dispute processes) and offers specific suggestions for addressing them. Interestingly, voting technology and the validity of provisional ballots were less of an issue in 2008 than they had been in recent elections and receive consequently less attention in this report. The book builds on the incredible repository of knowledge accumulated by Election Law @ Moritz, while also continuing to draw on insights from the many different actors and stakeholders in the election systems of these states.
Steven F. Huefner, A Champion of State Constitutions, 75 ALBANY L. REV. 1673 (2012).
This article is derived from Steve’s remarks at a Symposium dedicated to Chief Justice Christine Durham of the Utah Supreme Court, for whom Steve clerked two decades ago. Steve’s remarks tell the story encapsulated in his title. Chief Justice Durham has spent her judicial career advocating a robust role for state constitutionalism. Her tenure on the Utah Supreme Court involved first a decision that Utah’s Equal Protection Clause was not controlled by federal jurisprudence, then dissents by Justice Durham arguing for state constitutional distinctions and, finally, watershed majority opinions based on state constitutional differences and others following a “primacy approach,” deciding cases on state constitutional grounds first, even if federal constitutional law would provide the same answer. Through published scholarship and service to many institutions (e.g., the American Law Institute), Justice Durham’s impact on state constitutional law has also spread well-beyond Utah’s borders.
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