Defunct: This blog remains defunct. After a leave of absence last year, I have decided not to resume blogging. As before, I have left the archives of old posts in place for whatever interest they might continue to have.

Leave of absence: I have taken a leave of absence from blogging for 2005-06. This blog has been defunct for a long time, and I had been posting at Crooked Timber. I have not posted in awhile now and will remain away for the year. I considered dismantling this blog but have decided to leave it standing so that others can access old posts, for whatever they might be worth.

Voter competence under compulsory voting: I posted what follows over at Crooked Timber, but it seems appropriate here, too. Dan Ortiz has an article called "The Paradox of Mass Democracy," printed in recent book called Rethinking the Vote (OUP) that raises some interesting questions about the relation between compusory voting and voter competence. Ortiz argues that democracies are supposed to meet three conditions: (i) near universal suffrage, (ii) equality among those granted voting rights, and (iii) some degree of thoughtfulness among voters. The problem is that we can't have it all: the more we broaden political participation among equals, the less likely it is that individuals will deliberate about their political choices. The argument is that mass participation, combined with voter equality, drives down voter competence. The main reason for this effect is that individual votes matter less when more people vote. As partipation expands, rational voters therefore have less reason to educate themselves about their political choices.

Ortiz argues that the best way to deal with this trend is to neutralize the effects of voter incompetence through various structural reforms. To take a simple example, Jon Krosnick and some of his associates have shown that candidates listed first on a ballot receive a "name order bonus." Even if this effect is minimal, say under 3%, it might still be sufficient to decide some elections. An easy solution is to rotate the names of candidates in order to cancel out the "noise" generated by unthoughtful voters. (States like Montana and Ohio already do this.) The problem with this solution, as Ortiz is aware, is that it leaves the underlying problem untouched. Rotating ballots doesn't change the fact that lots of voters are still incompetent. Since Ortiz is skeptical about attempting to change voter behavior, he thinks that "shallow" strategies are the best--indeed, the only--way to overcome the bad effects of the democratic paradox he identifies.

But are there other solutions to the problem of voter competence that are not deeply coercive? To come back to Australia, does providing (positive or negative) incentives for voting improve voter competence? For example, how does Australia, which has compulsory voting, compare in voter competence with countries that lack incentives for voting? Does the "name order" effect hold at similar levels? (Or does Australia use rotational ballots to cancel this effect?) If increasing voter turnout drives down voter competence, other things being equal, one would expect a significant drop in voter competence.

How would paying people to vote (say, with some sort of tax credit or voucher) effect voter competence? Would people learn more about candidates--either because they feel obligated by law, or because candidates will invest more in the process of informing voters knowing that everyone must participate? Consider also the effect of incentives on two classes of voters--those who already vote, and those who would vote only under an incentive regime. First, would there be crowding out effects for people who would have voted without legal or financial incentives? In other words, would a monetary incentive for voting displace other possible motives--including those based on some sense of civic duty? And, second, how would voting incentives effect competency levels for the class of people who would not otherwise vote?

I'm not sure what to think of the "mass paradoxes" argument, in part because there seem to be lots of open questions about how voter competence is related to various ways of structuring voter participation. "Shallow" strategies may be a good way to neutralize unthoughtful voters, but perhaps these solutions can be supplemented with incentives that promote greater political deliberation.

Rawls and the Law: Larry Solum has fabulous coverage of the Rawls conference at Fordham. Wish I could be there, but Solum's comments are the next best thing. Don't miss them--go here and scroll up.

Women in the Judiciary: a group I work with at the University of Virginia law school is hosting a panel on "Women in the Judiciary" later today. Two federal appellate judges and a justice from the Virginia Supreme Court will take questions for about an hour and half. Dahlia Lithwick (to whom this slightly scary fan blog is devoted) kindly agreed to moderate.

Preparing for the panel, I came across some interesting--though not terribly surprising--demographic information on women in the U.S. federal judiciary. The Federal Judiciary Center has a nice database (look for the Federal Judges Biographical Database) that lets you search for information about federal judges using about a dozen different variables, including who nominated them and when. I ran a search on "Nominating President" and "Gender" and got these results:

From Kennedy to Ford, there were a total of six women appointed to the federal bench; Carter appointed 40 women out of 257 total appointments, Regan 29/372, Bush 36/211, Clinton 104/367, and Bush II 29/144 (so far).

Note that Clinton appointed almost as many women to the bench as all of the presidents before him combined. Looking at the percentages, about 28% of Clinton's nominees were women, which roughly equals the percentage of women in the legal profession. (For statistics on the number of women in the legal profession in the U.S., go here.) W's numbers are lower than Clinton's to date, though, given the growth of women in the profession, one would hope the numbers would go up.

What's the hurry? Bruce Ackerman has an op-ed piece in the New York Times today arguing that the Ninth Circuit should not delay the vote in California. I have to admit that I was a bit surprised by Ackerman’s willingness to limit the possibilities raised by the equal protection claims upheld in Bush v. Gore. Here’s his argument:

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters . . . Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline.

It also offered them a fair election. It seems reasonable for a court to postpone an election long enough to permit the installation of fair voting systems, rather than going through with error-prone machines and then trying to sort out the mess afterwards.

What about Ackerman’s First Amendment argument? It always helps to have the text around. So the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The core of the First Amendment may be the protection of political speech. But even if that’s right, it’s a big stretch to say that its core is the freedom to present a coherent political message to voters. That’s either rhetorical flourish or wishful thinking. Ackerman is asserting a First Amendment right to have an election run on time. I’m sure it would be a good thing to have prompt elections, and there may be statutory law requiring it. But, if there’s a constitutional claim involved here, it is the right to have one’s vote counted equally in a fair election. Ackerman thinks that this claim isn’t strong enough to override his First Amendment concerns. I think those concerns are overstated, at best. But even if they aren’t, this is an opportunity to see whether the Supreme Court was serious about the equal protection arguments of Bush v. Gore. It’s worth waiting for a decision about whether the Court meant what it said about guaranteeing fair elections.

Give Children the Right to Vote? I'm taking a course on election law, and the professor mentioned a proposal today that I hadn't heard about before. He said there's a movement in Germany to propose a constitutional amendment that would give children the right to vote from birth. I thought he was pulling our leg at first, but listen to this segment on NPR. The idea is that parents (or principal care givers) would act as proxies for children by voting on their behalf. According to proponents, this would have two benefits. First, it would give politicians greater reason to care about family and children's issues. Second, in an effort to correct for Germany's declining birth rate and rapidly aging population, it would give people greater incentive to have more children. (A quick search turns up some other proposals of this kind floating around, from the sophomoric to the more considered (by Gillian Thomas at Demos) to the academic manifesto (by Duncan Lindsey at UCLA.).

I think the population growth rationale is very bad. There are lots of ways to provide incentives for population growth without altering the voting system. Some form of subsidy for having children seems like an obvious mechanism. It would certainly be a lot easier to retract a subsidy when the target population level is reached. Retracting the suffrage is notoriously difficult--and usually for good reason. This rationale also assumes, of course, that increasing population in Germany (or elsewhere, for that matter) is a good thing. Since I don't know anything about German demographics, I'll leave it up to someone else to pursue that line.

More generally, what about the argument that children lack adequate representation? I think this is probably right, but the institutional problems with proxy-voting seem insurmountable. There are principal-agent problems, incentives for strategic voting, and the more basic question of whether it's fair to allocate proxy-votes in the first place. Still, the proposal raises some interesting questions about institutional solutions for problems of intergenerational justice. Place yourself in the original position and ask: if I didn't know how old I would be when the veil is lifted, what principles of political representation would I favor? One-(adult) person, one vote?

Double posting: I'm not sure about this yet, but I thought I would start posting some of what I write over at Crooked Timber here as well. We'll see how it goes.

Crooked Timber: I'll be blogging over at Crooked Timber for the foreseeable future. I've very much enjoyed writing this blog, but it's time to branch out, so to speak. Hope you'll keep reading at the new blog.

More on Gadamer: Josh Cherniss has some thoughtful things to say about the question I posed below: was Gadamer a Nazi? Josh thinks that

one of Gadamer’s greatest personal virtues was also a part of his greatest moral failing, and that this same double-edged quality accounts for both an attractive strength, and a worrying weakness, in his work. Gadamer seems to have suffered from an excess of indulgence, of generosity, of tolerance; he was too charitable, at the time and afterwards, to colleagues who believed and did appalling things (though not towards certain fanatical out-and-out Nazis, whom Gadamer did distinguish from their milder colleagues and condemned). It wasn’t that Gadamer refused, or was even reluctant to, pass judgment; he did. But his judgments with regard to the behaviour of German academics under the Nazis strike me as too indulgent towards others – and towards himself. It was a tough situation, and we should indeed avoid passing hasty and arrogant judgment on those faced with a very hard decision . . . Gadamer’s thought, to the very limited extent I understand it, seems to me animated by his attractive and admirable commitment to dialogue and understanding, which Wolin notes at the beginning of his review. This is worth emulating and fostering. But, as Wolin also notes (and quotes Adorno to the effect of), we are also faced with a moral imperative to avoid repeating the horrors of Nazism – and to oppose those who would seek to repeat them. To the extent that Gadamer inspires us to greater humanity, humility, tolerance and understanding, he is a worthy ally in this project; but to the extent that adopting his philosophy and method may inhibit our ability to make tough judgments and take difficult stands, he may also be a sometimes unreliable and even dubious one.

Read the rest here.

Light blogging over the next couple of weeks. I'm trying to get an artice out, and then I'll be out of town for about a week. It's that time of the year when your friends get married!