A Dialogue on Originalism Occasioned by Bennett's Electoral College Reform Ain't Easy

By Lawrence B. Solum & Robert W. Bennett

[Editor's Note:  The following piece is an informal dialogue between Professors Solum and Bennett which grew out of Bennett's prior piece on the Colloquy, Electoral College Reform Ain't Easy (click here to read the original piece).  Other readers wishing to participate in this dialogue are invited to submit a piece to the Colloquy Editor, or to leave a comment below.]

Solum:

I recently posted about Bennett's very interesting piece on Legal Theory Blog: Bennett on Electoral College Reform.  My post quoted a long passage, but in this comment I want to focus on the following:

If we took the argument for constitutional protection [of an elector's right to vote contrary to instructions] seriously, we would also have to take seriously other aspects of the original conception of the presidential selection process.  For instance, neither political party designation nor the names of presidential and vice presidential "candidates" could appear on ballots, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.

My post then commented:

Bennett's argument simply does not follow.  From the fact that the Constitution contemplates that electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations.  There is a tension at the level of rationale, but such tensions are ubiquitous in the law.

Professor Bennett's reply has been posted on Legal Theory Blog (Bennett Replies on Electoral College Reform), and our exchange is cross-posted here on the Colloquy.

Translating the U.S. LLM Experience: The Need for a Comprehensive Examination

By Carole Silver & Mayer Freed [*]

The process of globalization has generated increasing interest in United States law.  One consequence of this interest is the development of a new market for U.S. legal education:  foreign nationals, both those who have previously studied law and those who are licensed to practice law in their home countries.  These students frequently seek to gain fluency in U.S. law by enrolling in U.S. law school LLM programs.  This essay will discuss the mismatch between the career interests of LLM graduates and the state bar licensing systems in which they participate, and will propose a unique comprehensive examination tailored to meet the needs of foreign LLMs.

The Law and Expressive Meaning of Condemning the Poor After Kelo

By David A. Dana

Abstract:

This Essay provides a review of the changes in state law following Kelo v. City of New London, and in particular focuses on the dominant reform: the prohibition of economic development condemnations in non-poor areas (which Kelo allows, as a matter of federal constitutional law) coupled with continued allowance for blight condemnations in poor areas.  This dominant reform, the Essay argues, privileges the stability of middle-class households over the stability of poor ones, and thus expressively devalues poor people and poor communities in legal and political discourse.

Click Here to Download This Short Essay

Copyright 2006 Northwestern University

Cite As:  101 Nw. U. L. Rev. (forthcoming 2007); 101 Nw. U. L. Rev. Colloquy 5 (2006),  http://www.law.northwestern.edu/lawreview/Colloquy/2006/2/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/2/

Electoral College Reform Ain't Easy

By Robert W. Bennett

At the end of September California's Governor Arnold Schwartzenegger vetoed legislation that would have assigned the state's huge chunk of 55 electoral votes to the winner of the nationwide popular vote—once other states with 215 additional electoral votes were similarly committed.  The total of 270 electoral votes would represent the required electoral college majority and hence seemingly guarantee that the nationwide vote winner would become president.  This would make impossible what happened in 2000—and in two or three other presidential elections over the years—where the electoral college winner lost the nationwide popular vote.

It's not hard to understand the Governor's veto.  Under the legislation, California's electoral votes could go to a candidate who had lost the statewide vote.  A shift of those 55 electoral votes could thus award the presidency to a candidate whom California's voters had rejected, perhaps by a large margin.  Still, there are substantial arguments in favor of the legislation, even from the vantage point of California's self-interest.  California—along with lots of other states—has been quite predictable in recent presidential elections.  As a result, candidates of both major parties campaign very little in the state.  They lavish attention—including campaign promises—on "swing" states instead.  If the nationwide vote determined the outcome, California (and other politically lopsided states) could expect to receive a good deal more attention from candidates of both political parties.