Michael S. Kang, When Courts Won’t Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy, 68 Ohio St. L.J. 1097 (2007).
Abstract: After two prominent U.S. Supreme Court decisions on partisan gerrymandering during recent years, the law of partisan gerrymandering remains as muddled as beforehand. Commentators attribute the Court’s confused reasoning, after which the Court still fails to provide a legal standard for partisan gerrymandering, to a broader failure to apply a structural approach to problems in the law of democracy. Under this view, the Court encounters doctrinal dead ends, epitomized by the partisan gerrymandering cases, precisely because it refuses to shift its conventional focus on individual rights to a new structural focus on a substantive vision of the proper functioning of the political process. However, in this brief Article, I speculate that quite the opposite may be true. The Court’s failures in the partisan gerrymandering cases may result from what amount to efforts by the Court to move in structural directions. The partisan gerrymandering cases therefore highlight what may be serious practical challenges for judicial application of a structural approach to the law of democracy.
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