Todd E. Pettys
While promoting a new book this past spring, retired justice John Paul Stevens sat down for interviews with Jeffrey Toobin of the New Yorker and Adam Liptak of the New York Times. In both conversations, Stevens sharply criticized the ruling that the US Supreme Court had handed down a few weeks earlier in McCutcheon v Federal Election Commission ... Toobin recounted Stevens’s criticism:
“It’s a grossly incorrect decision,” Stevens said. “The very first sentence of the Chief Justice’s opinion lays out a basic error in this whole jurisprudence. He says that there is ‘no right more basic in our democracy’ than to pick our elected officials. But the case is not about whether individuals can pick their own congressmen. It’s about giving lots of campaign contributions, picking other people’s congressmen, not your own.”
Was Shaun McCutcheon trying to pick “other people’s congressmen,” as Justice Stevens charged, or was he trying to pick his own? Under the vision of federalism that Stevens endorsed on behalf of a majority of the Court nearly twenty years ago, McCutcheon was trying to choose his own leaders.... Even if one takes the contrary view of our federal system and posits that senators and representatives represent only the states and districts from which they come, the First Amendment stands as an obstacle to concluding that long-armed donors’ campaign activities may be uniquely restricted. Absent a dramatic shift, Citizens United and other increasingly entrenched features of our political culture strongly suggest that cross-border campaign spending is here to stay.
81 U Chi L Rev Dialogue 77 [Essay PDF]
In Libertarian Paternalism, Path Dependence, and Temporary Law, Professors Tom Ginsburg, Jonathan S. Masur, and Richard H. McAdams (GMM) present an attractive theory of “temporary law” as law that expires after a set period of time. Their theory builds a persuasive normative case that in limited circumstances, temporary law might usefully dislodge a preexisting equilibrium. Like the archaic Alka-Seltzer ads, there may be times when a legally induced “try it, you’ll like it” strategy produces a superior, new separating equilibrium.
81 U Chi L Rev Dialogue 72 [Essay PDF]
A response to 81 U Chi L Rev 291 [Article PDF]