Rights and votes

Yale Law Journal

Volumn 121, Issue 6, 2012, Pages 1286-1363

  Levinson, Daryl J ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 84859118112     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (347)

1. Richard H. Pildes, The Supreme Court 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 28, 40 (2004).
2. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
3. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
4. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
5. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
6. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
7. Of course, rights and votes have other functions besides protecting the interests of minorities, and they may share some of these other functions as well. For example, both might be used to improve the epistemic quality of collective decisionmaking. Voting mechanisms may harness the "wisdom of crowds, " through Condorcet or related mechanisms, while rights may assign decisionmaking authority to those individuals or groups with the most information or the best incentives to make good decisions. For present purposes, however, the focus will remain on the utility of rights and votes for protecting the interests of minorities and other vulnerable groups.
8. This reflects the view that enfranchisement and other forms of democratic representation and participation are primarily of instrumental value in pursuing first-order interests. More broadly, the essential operative distinction between votes and rights in the analytic framework of this Article is between rules and arrangements that are valued instrumentally, for their utility in achieving or avoiding substantive outcomes through processes of collective decisionmaking, and the substantive outcomes of those processes that are the object of ultimate concern. At a purely formal level, any number of "rights" (conventionally so-called) might be reclassified as votes to the extent they are valued for their instrumental utility in affecting the outcomes of collective decisionmaking process. See and accompanying text (discussing complementarity with respect to political speech, etc.). Conversely, to the extent voting and other forms of democratic participation are valued intrinsically and not just instrumentally, voting "rights" might indeed count as rights. On the intrinsic versus the instrumental value of voting, see generally Morris P. Fiorina, The Voting Decision: Instrumental and Expressive Aspects, 38 J. Pol. 390 (1976); and Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. Rev. 330 (1993).
9. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1366 (2006) (arguing against the common equation of rights and judicial review).
10. See, e.g., See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1366 (2006) and accompanying text.
11. The powers of the branches (for example, the Article I, Section 8 powers of Congress) are conventionally lumped together with the rest of constitutional structure. Federalist constitutional theory, in contrast, portrayed rights and powers as two sides of the same coin; rights were said to begin where powers left off. See The Federalist No. 84, at 511-15 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
12. See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, at xii-xiii, 3-133 (1998). Understood in this way, the Bill of Rights demonstrates that, just as votes can be used to create and preserve rights, rights can be used to create and preserve votes.
13. See Mark A. Graber, Enumeration and Other Constitutional Strategies for Protecting Rights: The View from 1787/1791, 9 U. Pa. J. Const. L. 357 (2007) [hereinafter Graber, Enumeration].
14. The classic statement of this general concern is Madison's The Federalist No. 10, (James Madison).
15. The Federalist No. 51, at 323 (James Madison).
16. Madison's view was based in large part on the experience of state governments in the decade leading up to the Constitution. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 290, 313-14 (1996).
17. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in Jack N. Rakove, Declaring Rights: A Brief History with Documents 160, 161-62 (1998) [hereinafter Madison, Letter to Jefferson].
18. Jack N. Rakove, Declaring Rights: A Brief History with Documents at 162.
19. Jack N. Rakove, Declaring Rights: A Brief History with Documents at 162.
20. Recent experience also pointed to the futility of attempting to constitutionalize countermajoritarian rights. In a letter to Jefferson justifying his opposition to a Bill of Rights, Madison argued that "experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. " at 161. Other Federalists shared Madison's view. See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 376-82 (1969). As Roger Sherman put the basic point, "No bill of rights ever yet bound the supreme power longer than the honeymoon of a new married couple, unless the rulers were interested in preserving the rights. " Roger Sherman, A Countryman, II., New Haven Gazette, Nov. 22, 1787, reprinted in Essays on the Constitution of the United States, Published During Its Discussion by the People, 1787-1788, at 218, 219 (photo. reprint 2003) (Paul Leicester Ford ed., Brooklyn, Historical Printing Club 1892) (emphases omitted).
21. In his Federalist No. 10, Madison explains: Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. The Federalist No. 10, at 83 (James Madison); see also The Federalist No. 51, at 270 (James Madison) ("[T]he society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. ").
22. The Federalist No. 51, at 324 (James Madison).
23. The Federalist No. 57, at 350 (James Madison).
24. The Federalist No. 10, at 82 (James Madison); see also Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 41-42 (1985).
25. See The Federalist No. 51, at 322 (James Madison). Courts and constitutional theorists continue to believe that the competition between the legislative and executive branches results in a self-enforcing balance of power. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 950-51 (2005) [hereinafter Levinson, Empire-Building].
26. See The Federalist No. 45, at 290-91 (James Madison). Here too, courts and constitutional theorists continue to believe that competition for power between the states and the federal government will create a self-enforcing set of "political safeguards" for federalism. See Levinson, Empire-Building, at 948-50.
27. As Hamilton aptly summarized this strategy of constitutional design, "[A]ll observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government. " The Federalist No. 31, at 196 (Alexander Hamilton).
28. The Federalist No. 84, at 515 (Alexander Hamilton).
29. James Madison, Speech to the Virginia Constitutional Convention (1829), in Selected Writings of James Madison 355 (Ralph Ketcham ed., 2006).
30. On the debates over slavery at the Convention, see Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant with Death, in Beyond Confederation: Origins of the Constitution and American National Identity 188 (Richard Beeman, Stephen Botein & Edward C. Carter II eds., 1987).
31. Speech of James Madison at the Constitutional Convention (Aug. 25, 1787), in 10 The Papers of James Madison 157, 157 (Robert A. Rutland et al. eds., 1977).
32. Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006) [hereinafter Graber, Constitutional Evil].
33. The Constitution does accommodate the institution of slavery in a number of other respects. See U.S. Const. art. I, § 2, cl. 3 (declaring that slaves will count as three-fifths of a person for purposes of legislative apportionment); art I, § 8, cl. 15 (granting Congress the power to call up the militia to suppress insurrections, which would have included slave uprisings); art. I, § 9, cl. 1 (prohibiting Congress from banning the importation of slaves until 1808); art. I, § 9, cl. 5 (prohibiting Congress from imposing export taxes of the sort that could be applied to goods produced by slave labor); art. IV, § 2, cl. 3 (requiring that fugitive slaves be returned to their owners).
34. See Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006), at 101-06.
35. Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006) at 126-27.
36. See Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought 89-92 (1990).
37. See Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006), at 140-44; Barry R. Weingast, Political Stability and Civil War: Institutions, Commitment, and American Democracy, in Analytic Narratives 148, 153-55 (Robert H. Bates et al. eds., 1998) [hereinafter Weingast, Political Stability].
38. See Barry R. Weingast, Political Stability and Civil War: Institutions, Commitment, and American Democracy, in Analytic Narratives 148, (Robert H. Bates et al. eds., 1998), at 156-59.
39. See Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006), at 135-40.
40. Annals of Cong. 2361 (1824). Elaborating on this common wisdom during the debates of the Virginia Constitutional Convention, Abel Upshur confidently proclaimed that no "paper guarantee was ever yet worth any thing, unless the whole, or at least a majority of the community, were interested in maintaining it. " See Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought (1990), at 141.
41. John C. Calhoun, A Disquisition on Government and Selections from the Discourse 20 (C. Gordon Post ed., 1953) (1851). On Calhoun's concurrent majority, see generally Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought (1990), at 77-126.
42. David M. Potter, The South and the Concurrent Majority (1972).
43. James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009).
44. See Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought (1990), at 94-95.
45. See Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought 89-92 (1990) at 98-99.
46. See Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 3 (2007) [hereinafter Posner & Vermeule, Terror in the Balance].
47. Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 3 (2007). Posner and Vermeule themselves take a very different view of this pattern. Because "the executive is the only organ of government with the resources, power, and flexibility to respond to threats to national security, " they argue, "it is natural, inevitable, and desirable for power to flow to this branch of government. " At the same time, "[c]ivil liberties are compromised because civil liberties interfere with effective response to the threat. " at 4.
48. See, e.g., David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003).
49. See generally William H. Rehnquist, All the Laws but One: Civil Liberties in Wartime 205 (1998).
50. Posner & Vermeule, Terror in the Balance, at 16.
51. See Daniel Farber, Lincoln's Constitution 157-59 (2003).
52. 343 U.S. 579, 634 (1952) (Jackson, J., concurring).
53. See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inquiries L. 1 (2004) [hereinafter Issacharoff & Pildes, Rights During Wartime].
54. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
55. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Ex parte Quirin, 317 U.S. 1 (1942).
56. See Samuel Issacharoff & Richard H. Pildes, Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, 5 Theoretical Inquiries L. 1 (2004), at 39-40.
57. As Posner and Vermeule plausibly characterize the historical record, "Legislative action during emergencies consists predominantly of ratifications of what the executive has done, authorizations of whatever it says needs to be done, and appropriations so that it may continue to do what it thinks is right. " Posner & Vermeule, Terror in the Balance, at 47; see also Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 41-52 (2010).
58. See Posner & Vermeule, Terror in the Balance, at 53-57 (discussing this possibility, while expressing some skepticism about its likelihood). Historically, Congress has, in fact, proven itself willing and able to intervene when costly wars have dragged on and become unpopular. See William G. Howell & Jon C. Pevehouse, While Dangers Gather: Congressional Checks on Presidential War Powers 10-17 (2007).
59. See Howell & Pevehouse, at 46-47.
60. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2342-47, 2352 (2006).
61. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
62. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
63. In historical context, process theory was an attempt to recreate a legitimate role for the Court after its Lochner-era jurisprudence had been discredited during the New Deal, and then to legitimate the aggressive agenda of the Warren Court. Bruce A. Ackerman, Beyond Carolene Products, 98 Harv. L. Rev. 713, 713-14 (1985).
64. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 82-83.
65. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) at 86.
66. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) at 161.
67. See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 750-51 (1991) [hereinafter Klarman, Puzzling Resistance].
68. Along similar lines, the judicially created Dormant Commerce Clause, limiting the ability of state governments to enact protectionist measures at the expense of out-of-state economic interests, might be justified as compensating for the lack of representation of geographic outsiders. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 83-84; see also S.C. State Highway Dep't v. Barnwell Bros., 303 U.S. 177, 185 n.2 (1937) ("Underlying the stated rule has been the thought... that when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted.... ").
69. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 135-79.
70. See United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and may call for a correspondingly more searching judicial inquiry. ").
71. The essential problem is that, in the absence of any value-neutral way for courts to identify which groups have received less than their "fair share" of political power, courts seem to be empowered to substitute their own values for those of democratic majorities. For criticisms of Ely's work in this regard, see, for example, Ackerman, at 739-40; Paul Brest, The Substance of Process, 42 Ohio St. L.J. 131 (1981); Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063, 1073-79 (1980); and Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 Yale L.J. 1037 (1980).
72. Martin Luther King, Jr., Give Us the Ballot, Address Delivered at the Prayer Pilgrimage for Freedom (May 17, 1957), in 4 The Papers of Martin Luther King, Jr. 208, 210 (Clayborne Carson et al. eds., 2000).
73. See Mark Tushnet, The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston, 74 J. Am. Hist. 884, 888-89 (1987) [hereinafter Tushnet, Politics of Equality].
74. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991), at 790.
75. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 791.
76. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 791.
77. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 793-94.
78. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 797-802.
79. See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 799-801.
80. Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991) at 805-12.
81. For an overview of empirical studies examining the effects of the Voting Rights Act, see Richard H. Pildes, The Politics of Race, 108 Harv. L. Rev. 1359, 1377 (1995) [hereinafter Pildes, Politics of Race] (book review). Less predictable has been the tradeoff between descriptive and substantive representation that has arguably diminished the legislative benefits of black representation. See Pildes, Politics of Race, at 1377-89.
82. Reynolds v. Sims, 377 U.S. 533, 566 (1964).
83. Reynolds v. Sims, 377 U.S. 533, 566 (1964) at 562.
84. Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 Mich. L. Rev. 1833, 1867-68 (1992).
85. Katzenbach v. Morgan, 384 U.S. 641, 652 (1966).
86. See James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right To Vote, 145 U. Pa. L. Rev. 893 (1997).
87. Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 Mich. L. Rev. 1077, 1082 n.14 (1991).
88. See Sujit Choudhry, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies, in Constitutional Design for Divided Societies: Integration or Accommodation? 3 (Sujit Choudhry ed., 2008) [hereinafter Choudhry, Bridging] (juxtaposing the rights-focused approach of comparative constitutional lawyers with the structure-focused approaches of comparative political scientists).
89. See Arend Lijphart, Democracy in Plural Societies (1977) [hereinafter Lijphart, Plural Societies]; Arend Lijphart, Consociational Democracy, 21 World Pol. 207 (1969).
90. See Choudhry, Bridging, at 18-20.
91. Arend Lijphart, Review Article: The Northern Ireland Problem; Cases, Theories, and Solutions, 5 Brit. J. Pol. Sci. 83, 104 (1975).
92. See Lijphart, Plural Societies, at 37; see also James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 196-204 (elaborating the parallels between Calhoun and Lijphart). In fact, the constitutional order of the antebellum United States nicely fits the description of a consociational democratic arrangement. See Mark A. Graber, DRED SCOTT and the Problem of Constitutional Evil 114 (2006), at 187-91; Ken I. Kersch, "He'll Take His Stand, " 24 Const. Comment. 773, 776-78 (2007) (book review).
93. See Choudhry, Bridging, at 15-26.
94. Not surprisingly, this approach was backed by Lijphart, among other outside observers, who argued that a permanent black majority could not be a stable solution. See Arend Lijphart, Power-Sharing in South Africa (1985); see also James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 217.
95. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 216.
96. See Christina Murray & Richard Simeon, Recognition Without Empowerment: Minorities in a Democratic South Africa, in Constitutional Design for Divided Societies, at 409, 425.
97. Richard Spitz & Matthew Chaskalson, The Politics of Transition: A Hidden History of South Africa's Negotiated Settlement 91 (2000) at 426.
98. See Richard Spitz & Matthew Chaskalson, The Politics of Transition: A Hidden History of South Africa's Negotiated Settlement 91 (2000) ("[R]ealising that they would not succeed in entrenching power-sharing as a constitutional principle, [the government's negotiators] looked to other ways to secure the NP's position in the new constitutional order, [including] a comprehensive Bill of Rights. ").
99. See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 90 (2004) [hereinafter Hirschl, Towards Juristocracy]. Hirschl quotes former Boer President Paul Kruger's characterization of judicial review as "a principle invented by the Devil. "
100. (quoting S. African Law Comm'n, No. 25, Project 58. Working Paper on Group and Human Rights Law 296 (1989); see also Richard J. Goldstone, The South African Bill of Rights, 32 Tex. Int'l L.J. 451, 452 (1997) ("Without some guarantee of protection for the rights of minorities, the previous ruling white minority government would not have relinquished power to an inevitably black-controlled majority government. ").
101. See Hirschl, Towards Juristocracy, at 94-95.
102. Albie Sachs, South Africa's Unconstitutional Constitution: The Transition from Power to Lawful Power, 41 St. Louis U. L.J. 1249, 1250 (1997).
103. St. Louis U. L.J. 1249, 1250 (1997).
104. By 1990, the ANC had shifted toward embracing a bill of rights, proposing one of its own that contained predictably weaker protections for property rights. See Catherine M. Coles, Land Reform for Post-Apartheid South Africa, 20 B.C. Envtl. Aff. L. Rev. 699, 739-41 (1993). On the reasons for the ANC's shift, see Heinz Klug, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction 76-77 (2000).
105. S. Afr. Const., 1996, ch. 2, § 7.
106. For a guided tour of the Constitution of India's treatment of religion, see Laura Dudley Jenkins, Diversity and the Constitution in India: What Is Religious Freedom?, 57 Drake L. Rev. 913, 914-20 (2009).
107. Rochana Bajpai, Minority Rights in the Indian Constituent Assembly Debates, 1946-1949 (Queen Elizabeth House, Working Paper No. 30, 2002), available at http://www3.qeh.ox.ac.uk/pdf/qehwp/qehwps30.pdf.
108. See Shefali Jha, Rights Versus Representation: Defending Minority Interests in the Constituent Assembly, 38 Econ. & Pol. Wkly. 1579, 1579-80 (2003).
109. See Choudhry, Bridging, at 12. Northern Ireland's Good Friday Agreement of 1998 similarly combines incorporation of the European Convention on Human Rights and the creation of additional rights protections with a consociational political structure that requires dual Protestant and Catholic majorities for all "key decisions" and creates a diarchical Protestant and Catholic executive. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 204-06; see also Kieran McEvoy & John Morison, Beyond the "Constitutional Moment": Law, Transition, and Peacemaking in Northern Ireland, 26 Fordham Int'l L.J. 961 (2003) (tracing the origins of constitutional principles in Northern Ireland).
110. Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy (2006).
111. See Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy (2006) at 15-30.
112. See Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy (2006) at 10-14.
113. Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy (2006) at 11 (emphasis omitted).
114. See Daron Acemoglu & James A. Robinson, Economic Origins of Dictatorship and Democracy (2006) at 89-97.
115. The apparent tension between the two accounts might be dissipated by incorporating Hirschl's vision of elite-protective judicial review into Acemoglu and Robinson's model as a redistribution-limiting, democracy-stabilizing mechanism. See Acemoglu & Robinson, at 34-35, 207-11.
116. See, e.g., Alfred C. Aman, Jr., The Democracy Deficit: Taming Globalization Through Law Reform 54 (2004); Gráinne de Búrca, Developing Democracy Beyond the State, 46 Colum. J. Transnat'l L. 221, 221-36 (2008) [hereinafter Búrca, Developing Democracy]; Richard B. Stewart, Accountability, Participation, and the Problem of Disregard in Global Regulatory Governance 1-5 (Feb. 7, 2008) [hereinafter Stewart, Global Regulatory Governance] (unpublished manuscript) (on file with author).
117. See Stewart, Global Regulatory Governance, at 5-6.
118. Joined Cases C-402/05 P & C-415/05 P, Kadi & Al Barakaat Int'l Found. v. Council of the European Union, 2008 E.C.R. I-6351.
119. See Gráinne de Búrca, The European Court of Justice and the International Legal Order After Kadi, 51 Harv. Int'l L.J. 1, 9-11 (2010).
120. See Stephen C. Sieberson, The Proposed European Union Constitution: Will It Eliminate the EU's Democratic Deficit?, 10 Colum. J. Eur. L. 173, 188-203 (2004); J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2466-74 (1991). But see Andrew Moravcsik, In Defence of the "Democratic Deficit": Reassessing Legitimacy in the European Union, 40 J. Common Mkt. Studs. 603 (2002) (emphasizing the "democratic" advantages of governance by institutions not directly accountable to their constituents).
121. See, e.g., Mattias Kumm & Victor Ferreres Comella, The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union, 3 Int'l J. Const. L. 473, 486-91 (2005).
122. See Bundesverfassungsgericht [BVerG] [Federal Constitutional Court] May 29, 1974, 37 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 271, 1974 (Solange I).
123. See Bundesverfassungsgericht [BVerG] [Federal Constitutional Court] Oct. 22, 1986, 73 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 339, 1987 (Solange II).
124. See Wojciech Sadurski, 'Solange, Chapter 3': Constitutional Courts in Central Europe-Democracy-European Union, 14 Eur. L.J. 1 (2008).
125. See, e.g., Peter Mair, Popular Democracy and the European Union Polity, in Meaning and Practice of Accountability in the EU Multi-Level Context 19 (Dierdre Curtin & Anchrit Wille eds., 2008), available at http://www.connex-network.org/eurogov/pdf/egp-connex-c-05-03.pdf.
126. See Benedict Kingsbury, Nico Krisch & Richard B. Stewart, The Emergence of Global Administrative Law, 68 Law & Contemp. Probs. 15, 48-51 (2005).
127. Stewart, Global Regulatory Governance, at 31-35.
128. See Aman, at 81-82, 86.
129. For some skepticism about how far these measures can go, see Búrca, Developing Democracy, at 240-48.
130. See, e.g., Kingsbury et al., at 45-51 (juxtaposing the implementation of democracy and the protection of rights as two of the normative foundations of global administrative law regimes).
131. In fact, corporate law scholars sometimes refer to this as a "governance" or "structural" approach. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) [hereinafter Kraakman et al., Anatomy] ("governance"); Bernard Black & Reinier Kraakman, A Self-Enforcing Model of Corporate Law, 109 Harv. L. Rev. 1911, 1933-34 (1996) ("structural").
132. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 54-61.
133. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) at 55. Vote capping rules, which reduce the power of large shareholders relative to their economic stakes, serve a similar purpose and were also once common in U.S. corporate law (and remain common in other countries).
134. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) at 57. The authors note that "even Delaware implicitly mandates supermajority approval for mergers, asset sales, dissolutions, and charter amendments by requiring the approval of a majority of outstanding shares for these decisions. " Thus, if not all shareholders cast ballots, the threshold for approval will be higher than 50% of shares that have been voted.
135. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) at 121-22.
136. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) at 58.
137. Corporate law scholars sometimes refer to this as a "regulatory" or "prohibitive" approach. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 23-25 ("regulatory"); Black & Kraakman, at 1930-31 ("prohibitive").
138. See William A. Klein, John C. Coffee, Jr. & Frank Partnoy, Business Organization and Finance: Legal and Economic Principles 156-70 (11th ed. 2010).
139. See William A. Klein, John C. Coffee, Jr. & Frank Partnoy, Business Organization and Finance: Legal and Economic Principles 156-70 (11th ed. 2010) at 202-07.
140. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 59.
141. See Klein et al., at 215-18.
142. Sinclair Oil Corp. v. Levien, 280 A.2d 717, 719-20 (Del. 1971).
143. See Klein et al., at 168-69.
144. 637 A.2d 34 (Del. 1994).
145. see also Anupam Chander, Minorities, Shareholder and Otherwise, 113 Yale L.J. 119, 137-38, 150-53 (2003) (reading the Paramount decision as exemplary of corporate law's concern with protecting minority shareholders, and going on to compare constitutional law's concern with protecting racial minorities).
146. 564 A.2d 651 (Del. Ch. 1988).
147. 493 A.2d 946 (Del. 1985).
148. See William T. Allen, Jack B. Jacobs & Leo E. Strine, Jr., Function over Form: A Reassessment of Standards of Review in Delaware Corporation Law, 26 Del. J. Corp. L. 859, 890 (2001).
149. Most obviously, shareholder vulnerability is reduced by the easy exit option, available in many circumstances, of selling their shares. See In addition, managerial misconduct is constrained by contractual incentives and by the market for corporate control.
150. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010).
151. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010).
152. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 28-29; see also Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495, 501-23 (1993) (critically examining the analogy between labor representation and democratic politics); cf. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1381, 1422-27 (1993) (describing how the Wagner Act was conceived on the analogy and interconnections between industrial and political democracy).
153. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010), at 9.
154. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 10; Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law 22-29 (1990); James J. Brudney, Reflections on Group Action and the Law of the Workplace, 74 Tex. L. Rev. 1563, 1568-72 (1996).
155. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010), at 11.
156. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010)
157. Amar, at 84 (quoting Letters from the Federal Farmer (IV), reprinted in 2 The Complete Anti-Federalist 250 (Herbert J. Storing ed., 1981). So important were juries that they were expressly protected not only in the original Constitution (in Article III) but also in three of the ten amendments of the Bill of Rights (the Fifth, Sixth, and Seventh).
158. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 81-118.
159. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 84.
160. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 84-85.
161. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 88-93.
162. See Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010) at 271-74.
163. See Roderick M. Hills, Jr., Back to the Future? How the Bill of Rights Might Be About Structure After All, 93 Nw. U. L. Rev. 977, 993-1000 (1999) [hereinafter Hills, Back to the Future] (reviewing Amar,).
164. See Amar, at 273 (arguing that Congress did, in fact, have constitutional authority under the Fifteenth Amendment).
165. 100 U.S. 303 (1879).
166. See Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 Yale L.J. 93, 94, 119-20 (1996).
167. See Taylor v. Louisiana, 419 U.S. 522, 530 (1975); see also Duren v. Missouri, 439 U.S. 357 (1979) (extending the fair cross-section requirement).
168. See Batson v. Kentucky, 476 U.S. 79 (1986); see also Georgia v. McCollum, 505 U.S. 42 (1992) (applying the Batson rule to strikes by defense counsel).
169. See Hills, Back to the Future, at 999-1000 (connecting fair cross-section jurisprudence to Strauder and Reconstruction-era conceptions of political and civil rights). Hills explains: "As the Court cannot review each jury decision to insure that no illegal prejudices entered the jury's deliberation, if the Court is to protect the [due process rights of black defendants], it will have to do so by reforming political institutions. "
170. See Susan N. Herman, Why the Court Loves Batson: Representation-Reinforcement, Colorblindness, and the Jury, 67 Tul. L. Rev. 1807 (1993).
171. See Susan N. Herman, Why the Court Loves Batson: Representation-Reinforcement, Colorblindness, and the Jury, 67 Tul. L. Rev. 1807 (1993) at 1812-13, 1842.
172. McCleskey v. Kemp, 481 U.S. 279 (1987).
173. Batson, 476 U.S. 79.
174. See Herman, at 1813. Justice Powell saw the two cases in a single frame: he believed that the best hope for preventing race discrimination in death cases was minority representation on juries. See John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. 440-41 (1994).
175. See Herman, at 1844-45; Hills, Back to the Future, at 1000; Muller, at 147-48.
176. The Supreme Court's decision in Hudson v. Michigan, 547 U.S. 586 (2006), suggests one small-scale example. In that case, the Supreme Court justified its curtailment of the exclusionary rule as a remedy for Fourth Amendment "knock and announce" violations in part by pointing to citizen review boards as an alternative mechanism of police accountability.
177. See Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1155-59 (1998).
178. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1155-59 (1998).
179. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, (1998). at 1161-63.
180. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1155-59 (1998).; see also Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. Chi. Legal F. 197. But see Albert W. Alschuler & Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights?: A Response to Professors Meares and Kahan, 1998 U. Chi. Legal F. 215, 222 ("Voting rights and civil liberties are not fungible. Even more than the white majority, African Americans need both. ").
181. This is not to deny that, at a high enough level of theoretical abstraction, rights and votes might indeed be close to perfect substitutes. In a purely formal model of collective decisionmaking, perhaps any conceivable outcome-based concern could be equally well addressed either by rearranging the decisionmaking process to favor preferred outcomes (i.e., through votes), or, alternatively, by directly specifying these results (i.e., through rights). In the real world, however, things are not so simple. As discussed throughout this Part, practical and conventional constraints on the forms and uses of rights and votes often create significant differences between them.
182. Ronald Dworkin, Taking Rights Seriously, at xi (1977).
183. See Graber, Enumeration, at 367-68.
184. 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, at 626 (Jonathan Elliot ed., 2d ed. 1891).
185. See Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 78-79 (2010).
186. The Federalist No. 84, at 514 (Alexander Hamilton).
187. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 81.
188. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010), at 242.
189. See Richard A. Posner, Not a Suicide Pact 31-51 (2006) [hereinafter Posner, Not a Suicide Pact]; Posner & Vermeule, Terror in the Balance, at 21-22.
190. Cf. Posner, Not a Suicide Pact, at 37 (favorably comparing Congress's competence at making national security decisions to that of courts).
191. Black & Kraakman, at 1931.
192. Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 24.
193. Graber, Enumeration, at 370, 368-72. This idea once again came to the fore in constitutional jurisprudence during the Lochner era. Due Process and related rights were understood to protect against "partial" legislation directed at particular classes or toward "private" ends. Laws designed to further the public good were constitutionally unobjectionable-even when these laws interfered with the life, liberty, or property of individuals. See generally Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998); Howard Gillman, The Constitution Besieged: The Rise and Demise of LOCHNER Era Police Powers Jurisprudence (1993).
194. See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991), at 801-03; Pildes, Politics of Race, at 1377 (reviewing empirical studies of the link between minority representation and local government responsiveness).
195. For a normative defense of nullification by black jurors in some cases, see Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679 (1995), which argues that "[t]he decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process. "
196. See generally Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law 1638-1766 (2d ed. 2006); Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008) [hereinafter Tushnet, Weak Courts].
197. S. Afr. Const., 1996, ch. 2, §§ 26-27, 29. On the South African Constitutional Court's approach to enforcing these rights, see Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever 216-29 (2004); and Tushnet, Weak Courts, at 242-47.
198. See, e.g., Fali Sam Nariman, The Indian Constitution: An Experiment in Unity amid Diversity, in Forging Unity out of Diversity (Robert A. Godwin et al. eds., 1985) (describing the Indian Constitution).
199. The Bill of Rights grants everyone "the right to use the language and to participate in the cultural life of their choice, " S. Afr. Const., 1996, ch. 2, § 29, and the right "to receive education in the official language or languages of their choice, " § 30, and the Constitution establishes a body called the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities to help secure these rights. ch. 9, §§ 185-86.
200. See, e.g., Ackerman, at 742-46.
201. Durability in the sense discussed in this Section operates along a different dimension than flexibility, as that term was understood in the previous Section. As we saw in Section II. A, votes are generally designed to be more flexible than rights. With respect to durability, however, the question is not how rights and votes are designed but whether, or for how long, they will keep operating as designed. There is no tension, then, in describing votes as both more flexible and more durable than rights.
202. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 87.
203. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) at 88.
204. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) at 88.
205. Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (2006).
206. Along the same lines, John Ferejohn and Larry Sager conceptualize structural constitutional provisions relating to "procedures or mechanisms of governance" as "external" commitment devices that prevent majorities from reneging on their "internal" commitments to constitutional rights. John Ferejohn & Lawrence Sager, Commitment and Constitutionalism, 81 Tex. L. Rev. 1929, 1945 (2003). Of course, this constitutional bootstrapping strategy can work only if structural commitments are more stable than the rights that they are supposed to protect. Ferejohn and Sager explicitly embrace this Madisonian premise. In contrast to politically precarious rights, they view structural rules and arrangements as "substantially self-executing" because structural dictates somehow "inspire reflexive conformity with their stipulations. "
207. See Sujit Choudhry, After the Rights Revolution: Bills of Rights in the Postconflict State, 6 Ann. Rev. L. & Soc. Sci. 301, 311-16 (2010) [hereinafter Choudhry, After the Rights Revolution]; see also (discussing democratic limitations on judicially enforced rights).
208. See Black & Kraakman, at 1978.
209. This is so even when the rights are specified in "considerable detail. "
210. Calhoun and others recognized this possibility. See Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861: A Study in Political Thought (1990), at 89-97.
211. Acemoglu and Robinson recognize the importance of this question in passing. See Acemoglu & Robinson, at 178.
212. To make matters more confusing, one of the examples of rights and votes discussed in Part I seems to rest on the opposite assumption. Ran Hirschl's hegemonic preservation theory of the rise of constitutionalization and judicial review portrays judicially enforced rights as more durable than elite political control over government decisionmaking-though without explaining why we should expect democratic majorities who have taken control of the rest of government to tolerate a hostile judiciary that continues to represent otherwise disempowered elites. See Hirschl, Towards Juristocracy,.
213. See Daryl J. Levinson, Parchment and Politics: The Positive Puzzle of Constitutional Commitment, 124 Harv. L. Rev. 657 (2011).
214. Consider in this regard Mill's description of free speech rights: "If all mankind minus one, were of one opinion,... mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. " John Stuart Mill, On Liberty 18 (David Spitz ed., Norton 1975) (1859). In most contexts, it will be hard to imagine a democratic decisionmaking process that would allow Mill's lone individual to protect himself against the rest of mankind.
215. See The Federalist No. 10, at 82-84 (James Madison).
216. Only when minorities were "barred from the pluralist's bazaar" by prejudice would courts need to step in to compensate for their political exclusion. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 152.
217. See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991), at 799-801.
218. See Kahan & Meares, at 1162-63.
219. John C. Calhoun, A Disquisition on Government and Selections from the Discourse 20 (C. Gordon Post ed., 1953), at 14.
220. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 13.
221. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009) at 11-12.
222. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009) at 13-15.
223. Lani Guinier, The Tyranny of the Majority 78 (1994) [hereinafter Guinier, Tyranny].
224. Lani Guinier, The Tyranny of the Majority 78 (1994) at 4.
225. Lani Guinier, The Tyranny of the Majority 78 (1994) at 42-43.
226. Lani Guinier, The Tyranny of the Majority 78 (1994), at 107-08, 149.
227. Lani Guinier, The Tyranny of the Majority 78 (1994) at 108.
228. James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 166-69 (discussing Calhoun).
229. See Robert A. Dahl, Democracy and Its Critics 185-86 (1989) [hereinafter Dahl, Democracy and Its Critics].
230. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 162-64.
231. James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009) at 172-78.
232. John C. Calhoun, A Disquisition on Government and Selections from the Discourse 20 (C. Gordon Post ed., 1953), at 50.
233. John C. Calhoun, A Disquisition on Government and Selections from the Discourse 20 (C. Gordon Post ed., 1953), at 50.
234. See John C. Calhoun, A Disquisition on Government and Selections from the Discourse 20 (C. Gordon Post ed., 1953) at 51 (emphasis omitted).
235. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 172-73.
236. On the general vices of giving "a minority a negative upon the majority" through supermajority or unanimity rules, see The Federalist No. 22, at 147 (Alexander Hamilton); and Dennis C. Mueller, Public Choice III, at 72-76 (2003).
237. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 197. These arguments were countered by Lijphart and other proponents of consociational democracy, who in turn invoked Calhoun's arguments in defense of the democratic innocuousness and practical workability of the minority veto.
238. See, e.g., ("As a result [of holdouts,] the federal government was completely unable to make effective economic policy, which worsened the very ethnic and nationality conflicts the consensus system was intended to diffuse. " (citing Susan L. Woodward, Balkan Tragedy 60 (1995).
239. See Posner & Vermeule, Terror in the Balance, at 47. More generally, there is a longstanding debate between the proponents of legislative-executive separation of powers, who emphasize the benefits of raising the transaction costs of governance in terms of preserving liberty and preventing tyranny, and admirers of Westminster-style parliamentary government, who see the separation of powers as a recipe for ineffective, gridlocked government. See Levinson & Pildes, at 2325-29. A microcosm of the same debate exists about the virtues and vices of bicameralism, federalism, and the minority-empowering, consensus-driven norms of the U.S. Senate.
240. Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 56.
241. Similarly, jury nullification has been frowned upon by courts on the grounds that "[t]o assign the role of mini-legislature to the various petit juries, who must hang if not unanimous, exposes criminal law and administration to paralysis, and to a deadlock that betrays rather than furthers the assumptions of viable democracy. " United States v. Dougherty, 473 F.2d 1113, 1136 (D.C. Cir. 1972).
242. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), at 161-62; David Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 981 (2002).
243. 553 U.S. 723 (2008).
244. Robert E. Goodin, Enfranchising All Affected Interests, and Its Alternatives, 35 Phi. & Pub. Aff. 40, 68 (2007). Democratic theorists have long puzzled over principled criteria for establishing the appropriate boundaries of the demos. See, e.g., Dahl, Democracy and Its Critics, at 193-209; Frederick G. Whelan, Prologue: Democratic Theory and the Boundary Problem, in Liberal Democracy 13 (J. Roland Pennock & John W. Chapman eds., 1983).
245. Some do believe that it would be a good idea to create a world government to supersede the U.S. political process. That would make it possible to enfranchise everyone affected by government decisionmaking, i.e., everyone in the world. See Robert E. Goodin, Enfranchising All Affected Interests, and Its Alternatives, 35 Phi. & Pub. Aff. 40, 68 (2007), at 64-65. But this possibility remains infeasible, if not dystopian.
246. Cf. Robert E. Goodin, Enfranchising All Affected Interests, and Its Alternatives, 35 Phi. & Pub. Aff. 40, 68 (2007) at 62-63, 66-67 (raising the possibility of limiting the power of a collective decisionmaker to make decisions affecting those who are not represented, or compensating the unrepresented for harms inflicted upon them by such a decisionmaker).
247. Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 62.
248. See Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004) at 66-67.
249. See Section I.H.
250. See Búrca, Developing Democracy, at 240-48.
251. See Choudhry, After the Rights Revolution, at 304; Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. Rich. L. Rev. 415, 423-30 (2000) [hereinafter Hirschl, Looking Sideways].
252. See, e.g., Reynaud N. Daniels & Jason Brickhill, The Counter-Majoritarian Difficulty and the South African Constitutional Court, 25 Penn. St. Int'l L. Rev. 371 (2006); Hirschl, Looking Sideways, at 434-40; David S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652, 662-69 (2005).
253. See Hirschl, Towards Juristocracy, at 11-12.
254. Matthew C. Stephenson, "When the Devil Turns... ": The Political Foundations of Independent Judicial Review, 32 J. Legal Stud. 59, 60 (2003); see also Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History 26 (2007) (observing that "[t]he Court cannot stand outside of politics and exercise a unique role as guardian of constitutional verities" because "the Court's judgments will have no force unless other powerful political actors accept the... priority of the judicial voice").
255. Donald L. Horowitz, A Democratic South Africa?: Constitutional Engineering in a Divided Society 158-60 (1991).
256. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009); see also Robert G. McCloskey, The American Supreme Court 224 (1960) ("It is hard to find a single historical instance when the court has stood firm for very long against a really clear wave of public demand. "); Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. Pub. L. 279, 285 (1957) ("[T]he policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States. ").
257. See Section I.C.
258. See generally Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy: Legal Structures of the Political Process (3d ed. 2007).
259. See Ellen D. Katz, Race and the Right To Vote After Rice v. Cayetano, 99 Mich. L. Rev. 491, 512-14 (2000) (describing the expressive and self-identification benefits of voting and political participation).
260. See Gardner, at 905-06.
261. Judith N. Shklar, American Citizenship: The Quest for Inclusion 2-3 (1991); see Don Herzog, Happy Slaves: A Critique of Consent Theory 219 (1989).
262. See Jeremy Waldron, Participation: The Right of Rights, 98 Proc. Aristotelian Soc. 307, 314 n.20 (1998) [hereinafter Waldron, Participation].
263. See Shklar, at 15-17.
264. Heather K. Gerken, Second-Order Diversity, 118 Harv. L. Rev. 1099, 1144 (2005).
265. On republicanism and political participation, see generally Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443, 451 (1989); Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); and Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539 (1988).
266. See John Stuart Mill, Considerations on Representative Government, in On Liberty and Other Essays 202, 303-24 (John Gray ed., Oxford Univ. Press 1991) (1861).
267. See Dahl, Democracy and Its Critics, at 91-93.
268. See, e.g., Dworkin, at 277 (grounding rights in the moral imperative that government treat its citizens with "equal concern and respect"); Jeremy Waldron, Introduction to Theories of Rights 1, 11 (Jeremy Waldron ed., 1984) ("Rights have been seen as a basis of protection not for all human interests but for those specifically related to choice, self-determination, agency, and independence. "); Waldron, Participation, at 330-32 (associating the idea of rights with individual agency, autonomy, and competent judgment).
269. Karl Marx, On the Jewish Question (1843), reprinted in Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man 137, 147 (Jeremy Waldron ed., 1987).
270. See Jeremy Waldron, Karl Marx's 'On the Jewish Question,' in Nonsense upon Stilts, at 119, 126-29. Marx took a more sanguine view of democratic rights, which are "only exercised in community with other men. " Marx, at 144; see also Waldron, at 129-32 (elaborating Marx's views about democratic politics).
271. See Jeremy Waldron, When Justice Replaces Affection: The Need for Rights, in Liberal Rights: Collected Papers 1981-1991, at 370, 374 (1993).
272. Leif Wenar, Rights, Stanford Encyclopedia of Philosophy (rev. July 2, 2011), http://plato.stanford.edu/archives/fall2011/entries/rights. Important critiques of rights-based liberalism from a communitarian perspective include Alasdair MacIntyre, After Virtue: A Study in Moral Theory (2d ed. 1984); Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy (1996); Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983); and 2 Charles Taylor, Philosophy and the Human Sciences: Philosophical Papers 187-229 (1985).
273. See generally Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).
274. Heather K. Gerken, Keynote Address: What Election Law Has To Say to Constitutional Law, 44 Ind. L. Rev. 7, 13 (2010) [hereinafter Gerken, Keynote Address] (quoting Pamela S. Karlan, John Hart Ely and the Problem of Gerrymandering: The Lion in Winter, 114 Yale L.J. 1329, 1332 (2005).
275. Pamela S. Karlan, John Hart Ely and the Problem of Gerrymandering: The Lion in Winter, 114 Yale L.J. 1329, 1332 (2005) at 10-12.
276. Richard H. Pildes, Ethnic Identity and Democratic Institutions: A Dynamic Perspective, in Constitutional Design for Divided Societies, at 173, 177 [hereinafter Pildes, Ethnic Identity] (citation omitted).
277. J.H.H. Weiler, Europe Against Itself: On the Distinction Between Values and Virtues (and Vices) in the Construction and Development of European Integration (Mar. 26, 2009) (unpublished manuscript), http://www.iilj.org/courses/documents/2009Colloquium.Session9.Weiler.pdf.
278. Cynthia Estlund, Regoverning the Workplace: From Self-Regulation to Co-Regulation 28 (2010), at 11.
279. See Anne Phillips, Democracy Versus Rights? (Sept. 2007) (unpublished manuscript) (on file with author).
280. Lani Guinier, The Tyranny of the Majority 78 (1994), at 69.
281. See Gerken, Keynote Address, at 10-14.
282. See Murray & Simeon, at 420.
283. Choudhry, After the Rights Revolution, at 10-11, 16-22.
284. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 2-4 (1995) (describing the dominance of universal social and cultural rights over groupspecific rights to protect minorities).
285. Compare Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring in part and concurring in the judgment) ("So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government's use of race. "), with Shaw v. Reno, 509 U.S. 630, 657 (1993) ("Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions. ").
286. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 2-4 (1995), at 7.
287. Cf. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 2-4 (1995) at 176-81 (discussing the acculturative effects of political, social, and civil rights for minorities and arguing that all types of rights may facilitate social solidarity and stability).
288. See Murray & Simeon, at 411; Pildes, Ethnic Identity, at 193-95.
289. The design of the Constitution of India is similar and raises the same puzzle. In the Indian Constituent Assembly deliberations, special political safeguards for religious minorities-including reserved seats in legislatures and cabinet representation-were seriously considered but ultimately rejected for fear of undermining national unity and secularism. Yet the Constitution includes cultural and educational rights for religious minorities. See Bajpai,.
290. See Choudhry, Bridging, at 15-26.
291. See Donald L. Horowitz, Constitutional Design: Proposals Versus Processes, in The Architecture of Democracy: Constitutional Design, Conflict Management & Democracy 15, 20-30 (Andrew Reynolds ed., 2002); see also Choudhry, Bridging, at 22-23 (describing Horowitz's approach).
292. See Pildes, Ethnic Identity, at 191.
293. See Lani Guinier, The Tyranny of the Majority 78 (1994), at 16 ("As a solution that permits voters to self-select their identities, cumulative voting also encourages cross-racial coalition building. No one is locked into a minority identity. Nor is anyone necessarily isolated by the identity they choose. ").
294. See Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, (1991), at 789-803.
295. See Hills, Back to the Future, at 997-1001 (viewing Strauder v. West Virginia, 100 U.S. 303 (1880), in this light and arguing more generally that the Fourteenth Amendment's attempt to protect civil rights without also guaranteeing political rights was doomed to fail).
296. See Benjamin I. Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685, 2691 n.22 (2008) (citing sources).
297. See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1067-83 (2001) (describing this dynamic and elaborating it into a theory of constitutional change through "partisan entrenchment").
298. Such forms of "de facto" political power might be contrasted with "de jure" political power of the sort that qualifies as "votes" in the analytic framework of this Article. See Acemoglu & Robinson, at 21. Alternatively, these forms of political power might themselves be classified as types of "votes, " in which case it becomes more credible to argue that votes (in this more expansive sense) typically will be necessary to sustain rights. On secession as an independent mechanism of minority protection (as opposed to a threat that can be leveraged into sociopolitical influence within the original political community), see infra Section III.B.
299. See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1067-83 (2001) at 25.
300. See Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 421-36 (2004).
301. Within the white elite, fear of the consequences of democratization was most intense among Afrikaner farmers, whose wealth was tied up in land. Financial and industrial elites could more easily escape expropriation by a democratic majority by moving their capital abroad. See Carles Boix, Democracy and Redistribution 12 (2003).
302. Madison, Letter to Jefferson, at 162. The idea that violations of constitutional rights might mobilize majorities to punish their misbehaving representatives has been recast by contemporary legal theorists and social scientists as an explanation for the efficacy of constitutional law more generally and for the political stability of an independent judiciary. See David S. Law, A Theory of Judicial Power and Judicial Review, 97 Geo. L.J. 723 (2009); Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci. Rev. 245 (1997).
303. See William N. Eskridge, Jr., Channeling: Identity-Based Social Movements and Public Law, 150 U. Pa. L. Rev. 419 (2001). On the other hand, the recognition of rights can also be politically disempowering. Judicial recognition of rights can create a backlash against the causes these rights were supposed to benefit.
304. See Michael J. Klarman, Why Backlash? (August 2010) (unpublished manuscript) (on file with author); see also Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007) (assessing the backlash hypothesis in the context of Roe v. Wade, 410 U.S. 113 (1973), and the politics of abortion). Even where judicially recognized rights do not create political backlash, they may lead to complacency or demobilization by the beneficiaries.
305. See, e.g., Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 339 (1991) (presenting evidence that Roe led to the demobilization of the pro-choice movement).
306. See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948).
307. See Tushnet, Politics of Equality, at 889 (recounting arguments to this effect made by congressional Republicans in the debates leading up to the Fourteenth Amendment).
308. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980), ch. 6.
309. See Corey Brettschneider, Democratic Rights: The Substance of Self-Government 14 (2007). On education rights, see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 113 (1973) (Marshall, J., dissenting). The more a right's value comes from its instrumental utility in enhancing political efficacy, the more it might make sense, within the analytic framework of this Article, to reclassify the right at least partially as a form of "voting" power. If the value of free speech is primarily in facilitating political participation, then perhaps free speech "rights" are better understood as equivalent to votes. The many "hybrid" rights that carry both intrinsic and politically instrumental value, including rights to property and nondiscrimination, straddle and perhaps problematize the rights/votes dichotomy.
310. See Waldron, Participation, at 330-34. Waldron says that democratic participation "calls upon the very capacities that rights as such connote, and it evinces a form of respect in the resolution of political disagreement which is continuous with the respect that rights as such evoke. "
311. Tushnet, Politics of Equality, at 888-89. The quoted language is Tushnet's.
312. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 1041 (2002).
313. See Albert O. Hirschman, Exit, Voice, and Loyalty (1970).
314. It is possible to view at least some types of rights as continuous with, or a special case of, federalism and secession. To the extent rights function to grant individuals or groups autonomy over a certain sphere, they can be understood as delegations of decisionmaking authority in much the same way as decentralized or independent governance arrangements. This is the analogy invoked by H.L.A. Hart's description of right holders as "small-scale sovereign[s]. " H.L.A. Hart, Legal Rights, in Essays on Bentham: Studies in Jurisprudence and Political Theory 162, 183 (1982). A further step in this direction is to recognize that rights protecting individual autonomy against government interference often have the practical effect of empowering nongovernmental groups-families, schools, unions, churches, and the like-to exert more sway over individual choice. In this light, rights switch from one collective decisionmaking process (the traditionally governmental one) to another (which might be described as "private government"). See Roderick M. Hills, Jr., The Constitutional Rights of Private Governments, 78 N.Y.U. L. Rev. 144 (2003).
315. See Hills, Back to the Future, at 983-87.
316. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 95-97.
317. See Daniel R. Fischel, The Corporate Governance Movement, 35 Vand. L. Rev. 1259, 1278 (1982) ("The ability freely to sell one's shares,... the so-called 'Wall Street Rule,' is without question the single most important safeguard to all shareholders that managers will act in their best interests. "); see also Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach 26-27 (1st ed. 2004), at 23-28 (presenting rights, votes, and exit as alternative strategies for protecting shareholders).
318. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 2-4 (1995), at 26-33. Lijphart sees federalism and power-sharing in the national government as complementary parts of the consociational design package. See Lijphart, Plural Societies, at 25-47; see also Donald L. Horowitz, Ethnic Groups in Conflict 601-52 (2d ed. 2000) (presenting federalism alongside minorityempowering electoral systems as "substitutab[le]" techniques for managing ethnic conflict); Pildes, Ethnic Identity, at 173-76, 184-85, 198-200 (viewing democratic representation schemes, judicially enforced rights, and federalism as alternative tools for protecting ethnic minorities in constitutional design).
319. See Murray & Simeon, at 431-32. While the South African Constitution did create a system of multilevel government, the provinces were not set up as ethnic enclaves or strongly empowered as autonomous decisionmaking bodies. See But cf. Robert P. Inman & Daniel L. Rubinfeld, Federal Institutions and the Democratic Transition: Learning from South Africa (Nat'l Bureau of Econ. Research, Working Paper No. 13733, 2008) (describing how the South African system of federalism was structured to create one province in which white elites were sufficiently dominant to hold the black Africans in that province "hostage, " giving the white elites leverage in negotiating with the majoritycontrolled central government).
320. See Roderick M. Hills, Jr., Federalism as Westphalian Liberalism, 75 Fordham L. Rev. 769 (2006).
321. The relevant arrangements obviously differ in significant ways. In some cases, groups literally exit a decisionmaking community, by seceding or selling shares (or refuse to enter a community, by remaining independent or not buying). In other cases, decentralized government arrangements create (or preserve) a unified decisionmaking community over some domain of issues while allocating other, specified issues to semi-autonomous sub-communities. The particular allocations of issues between centralized and decentralized decisionmakers differ both quantitatively and qualitatively. The number, scope, and composition of the decentralized decisionmaking units also vary across contexts. For present purposes, however, the important commonality is that vulnerable minorities in larger collective decisionmaking bodies can become autonomous majorities in smaller ones.
322. See Hills, Federalism, (identifying and comparing factional competition in national politics, rights, and federalism as alternative "liberal" solutions to the problem of deep divisions in society).
323. See Alberto Alesina & Enrico Spolaore, The Size of Nations 3-4, 18-23 (2003). But see The Federalist No. 10, (James Madison) (developing a theory of how heterogeneity could be a benefit of scale).
324. See Alesina & Spolaore, at 4, 53-57.
325. Michael J. Klarman, How Great Were the "Great" Marshall Court Decisions?, 87 Va. L. Rev. 1111, 1140-44 (2001); Barry R. Weingast, The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development, 11 J.L. Econ. & Org. 1, 19 (1995) [hereinafter Weingast, Market-Preserving Federalism]. Compare the ANC's concerns about federalism in South Africa: "[W]ith an agenda for economic and social development that would require a strong and effective central government, the ANC and its allies were deeply suspicious of federalism. " Murray & Simeon, at 432. Similar concerns have been voiced about the federal structure of the new Iraqi Constitution. Critics "insist that only a centralized government with a strong 'capacity' can perform vital nation-building tasks" such as "defeat[ing] the insurgency; fend[ing] off avaricious neighbors, particularly Iran; and protect[ing] minorities throughout the state. " John McGarry & Brendan O'Leary, Iraq's Constitution of 2005: Liberal Consociation as Political Prescription, 5 Int'l J. Const. L. 670, 679 (2007).
326. See James H. Read, Majority Rule Versus Consensus: The Political Thought of John C. Calhoun (2009), at 96 (describing the views of Calhoun). Southerners also feared that Lincoln would undermine slavery by bribing Southerners with federal patronage or by appointing abolitionist customs officials, judges, and postmasters in the South. See 2 William W. Freehling, The Road to Disunion: Secessionists Triumphant 1854-1861, at 439 (2007).
327. See Alesina & Spolaore, at 11. As with other forms of political empowerment, vesting minorities with a credible threat of secession gives them hold-out power and raises the risk of gridlock. See Tom Ginsburg, Public Choice and Constitutional Design, in Research Handbook on Public Choice and Public Law 261, 272-73 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010).
328. Of course, the possibilities and limitations of decentralized or independent governance will also be affected by shared histories, traditions, and political identities. These ideological factors may induce otherwise heterogeneous groups to form or remain loyal to a unitary political community.
329. On the assumption that state borders are more difficult to transgress than intrastate boundaries, secession might be a still more durable arrangement.
330. See, e.g., Sunita Parikh & Barry R. Weingast, A Comparative Theory of Federalism: India, 83 Va. L. Rev. 1593 (1997); Weingast, Market-Preserving Federalism, at 3.
331. See Weingast, Market-Preserving Federalism,.
332. Weingast does provide some context-specific reasons for why systems of federalism became stabilized in several different countries during specific time periods.
333. See Heather K. Gerken, The Supreme Court 2009 Term-Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 64 (2010).
334. See Philip G. Roeder, Where Nation-States Come From: Institutional Change in the Age of Nationalism (2007); see also Sujit Choudhry & Nathan Hume, Federalism, Secession, and Devolution: From Classical to Post-Conflict Federalism, in Research Handbook on Comparative Constitutional Law 366-67 (Tom Ginsburg & Rosalind Dixon eds., 2010) (describing this viewpoint and collecting additional sources).
335. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 2-4 (1995), at 181-86; see also Choudhry & Hume, at 367-78 (describing this viewpoint and collecting additional sources).
336. See Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745, 1794-95 (2005).
337. See Choudhry & Hume, at 36-42 (describing the views of Horowitz and others on designing a successful system of ethnically accommodative federalism).
338. See John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376-77 (2000).
339. Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337, 341-42.
340. See generally Ian R. Macneil, The New Social Contract: An Inquiry into Modern Contractual Relations (1980); Ian Macneil, The Relational Theory of Contract: Selected Works of Ian Macneil (David Campbell ed., 2001); Charles J. Goetz & Robert E. Scott, Principles of Relational Contracts, 67 Va. L. Rev. 1089 (1981).
341. See Ronald J. Gilson et al., Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine, 110 Colum. L. Rev. 1377, 1402-10 (2010).
342. See Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action 1-28 (1990); Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. 453 (2002).
343. See Oliver Hart, Firms, Contracts, and Financial Structure (1995); Oliver E. Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (1985).
344. Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (1975).
345. R.H. Coase, The Nature of the Firm, 4 Economica 386 (1937).
346. Sanford J. Grossman & Oliver D. Hart, The Costs and Benefits of Ownership: A Theory of Vertical and Lateral Integration, 94 J. Pol. Econ. 691 (1986).
347. Oliver Hart & John Moore, Property Rights and the Nature of the Firm, 98 J. Pol. Econ. 1119 (1990).