Web sites of the 50 state legislatures are evaluated on five criteria: content, usability, interactivity, transparency, and audience. An overall quality score for each site was computed. The evaluation revealed a wide range of quality in the sites, including that of features or aspects that could possibly foster citizen participation. The higher rated sites help define “best practices” in this regard and provide suggestions as to how other states' sites might make improvements and possibly increase participation.

When the state buys and then provides to the citizens goods and services, the state may certainly choose to audit, independently and comprehensively, the quality of the goods and services so provided, particularly when citizens are reporting back that the goods or services are causing unwanted, deleterious effects. This principle applies to intellectual property -- information -- education -- as well as to other goods and services. In particular, it applies to the theory of evolution as taught by (...) the state in its schools, colleges, and universities. A substantial public has long expressed concern; and the state may properly respond to that concern. Naturally, the state would never allow the vendor of goods and services to dictate that only its employees, or others whom it effectively controls, may be allowed to conduct audits. Indeed, persons substantially subject to the control of the vendor are the last possible choices to serve as independent auditors. The conflict-of-interest is well-recognized regarding information and opinion services: a huge problem arose with the big national auditing firms when they also established management consulting divisions -- the auditors tended to report favorably about companies and projects on which their own management consultants were involved. Yet the science community quite bluntly and openly proclaims that only its members -- persons it controls -- may function as auditors of the quality of scientific statements and propositions. They do this by asserting that only scientists may declare what is, or is not, scientific. Now it may be true that within any company, only employees of that company may properly develop the products that the company sells, and only they may deliver the company's statements regarding the quality of its own products. But when a company sells its products outside of itself, to others, such as the government, it may not impose as a condition of sale that only its employees may continue to render opinions about the quality of the product. When the science community actively urges the government to take-up and re-distribute its product, it necessarily surrenders any claim to a monopoly over auditing the product. A difficulty of conducting truly independent audits of science product vended to the government for delivery to the people lies in the fact that to-date, there is no systematic program of developing and training people to serve as such independent auditors. The closest group of people to rely on for this would be lawyers who, in litigation, have developed the ability to cross-examine expert witnesses in cases such as patent cases, or product-liability cases, or other litigations that involve expert testimony in advanced academic fields. This paper outlines a program by which states can conduct appropriate independent audits of evolution as vended to the state by the science community. (shrink)

The interactive nature of the Internet is seen by some as a technological innovation that might boost participation in politics and civic affairs. That potential, however, is clouded by imprecise definitions of interactivity found among scholars and practitioners alike. Evaluation of state legislature Web sites found them to not be very interactive under most definitions of the term. Chief technology officers of the legislatures appear to differ as to which site features promote interactivity. The current state of (...) these sites may do more to encourage civic engagement than to promote interactivity. (shrink)

The Internet, not unlike previous communication technologies, has been predicted to dramatically change the nature of democracy. The interactive nature of Web sites, in particular, is seen as the basis for a new cyberdemocracy. Although the definition of interactivity is less than precise, an evaluation of state legislature Web sites finds them lacking many features that could be considered interactive. Furthermore, the degree of a site’s interactivity was not strongly correlated to a site’s use. Web sites can also foster (...) interaction, both on- and off-site, through interactive and noninteractive features. When sites were examined for their potential to foster interaction, there was a strong relationship with site use. The current focus on interactivity may obscure the potential to promote interaction and lead to an overemphasis on interactive features that are sometimes nothing more than high-tech gimmicks. (shrink)

Many scholars have investigated the relationship between protest and repression. Less often examined is the legislative suppression of protest by elites seeking to make protest more costly to protesters. Because state legislatures are largely invisible to the public, this “wholesale” suppression of protest is less likely to trigger public opposition than repression by the police. This study explains the sharp increase in the number and the severity of state legislative bills to repress the right to protest both (...) before and after the election of Donald Trump. In particular, it examines whether these can be attributed either to Republican control of state legislatures or to protest threat. Contrary to the findings in much of the literature, bills aimed at suppressing protest are less closely related to threat than to the realignment of state politics. The article also finds that these proposals were influenced by diffusion through policy brokerage. (shrink)

Social network analysis has become an increasingly important tool among political scientists for understanding legislative cooperation in modern, democratic nation-states. Recent research has demonstrated the influence that group affinity (homophily) and mutual exchanges (reciprocity) have in structuring political relationships. However, this literature has typically focused on political cooperation where costs are low, relationships are not exclusive, and/or partisan competition is high. Patterns of legislative behavior in alternative contexts are less clear and remain largely unexamined. Here, we compare theoretical expectations of (...) cooperation in these contexts from the political and biosocial sciences and implement the first assessment of political alliance formation in a novel legislative environment where costs to cooperation are high and party salience low. We implement a stochastic actor-oriented model (SAOM) to examine bill floor sponsorship, a process in which a “floor sponsor” becomes the exclusive advocate for a colleague’s piece of legislation, in the Utah state legislature from 2005 to 2008—a context in which gender (male) and political party (Republican) supermajorities exist. We find that (1) party and gender homophily predict who legislators recruit as floor sponsors, whereas seniority does not, and (2) legislators frequently engage in reciprocal exchanges of floor sponsorship. In addition, whereas gender homophily increases the likelihood of reciprocity, party homophily decreases it. Our findings suggest that when the cost of cooperation is high, political actors use in-group characteristics for initiating alliances, but once a cooperative relationship is established with an out-group political member, it is reinforced through repeated exchanges. These findings may be useful for understanding the rise of political polarization and gridlock in democracies internationally. (shrink)

: State legislatures consider numerous bills to regulate managed care organizations. After identifying the legal, political, and economic barriers to state reform efforts, the paper assesses recent types of state regulation, particularly mandated benefits and disclosure requirements. Two prerequisites to future reform, coalition building and the diffusion of information about managed care, are analyzed.

Nonhuman animal studies scholars have extensively investigated attitudes on animal welfare in general and farm animal welfare in particular. Thus far, this research has focused mainly on public opinion, but there has been minimal research seeking to explain the influences on actual policymakers when they vote on farm animal welfare legislation. This paper contributes to this literature by quantitatively analyzing 216 state legislators’ votes on two farm animal welfare bills. It hypothesizes that the representatives’ personal and representational connections with (...) agriculture best explain their votes on these farm animal protection bills. This research also includes three control variables: each legislator’s gender, race/ethnicity, and political party. Logistic regression revealed that the legislators’ personal and representational connections with agriculture are significant, but political party is the strongest independent variable explaining state legislators’ farm animal welfare votes. An interaction model revealed mixed evidence that political party moderates the influence of agriculture. (shrink)

We build a multiple hierarchical model of a representative democracy in which citizens elect ward representatives, ward representatives elect county representatives, county representatives elect state representatives, and state representatives elect a prime minister. We use our model to show that the policy determined by the final representative can become more extreme as the number of hierarchical levels increases as a result of increased opportunities for gerrymandering. Thus, a sufficiently large number of voters provide a district maker an advantage, (...) enabling her to implement her favorite policy. (shrink)

New Jersey's Baby M case has thrust the issue of surrogate motherhood on state legislatures throughout the country. Like artificial insemination in the 1950s and 1960s, this new reproductive technology is evoking legislative responses ranging from horrified prohibition to cautious facilitation.

Agritourism activities have gained importance as a mechanism for some farmers to broaden their sources of income. As businesses have pursued agritourism activities, they have been concerned about liability for personal injuries of participants. In some states, providers of agritourism activities have presented legislators with ideas for an agritourism statute to limit liability for injuries resulting from inherent risks. Four new agritourism statutes have been enacted, while six other states have adopted alternative liability provisions that may apply to some agritourism (...) providers. The agritourism statutes provide an affirmative defense to providers to eliminate liability for inherent-risk injuries. An analysis of the statutory provisions shows legislatures making choices on the assignment of liability for accident injuries and the ability of providers to obtain releases from negligence. Because the agritourism statutes impose prerequisites and do not stop meritless lawsuits, they do not offer much assistance to agritourism providers. An evaluation of policy issues suggests that legislatures might consider additional options to address agritourism providers’ concerns. (shrink)

If the Supreme Court affirms either Compassion in Dying v. State of Washington or Quill v. Vacco, state legislatures will be presented with a new and unwelcome task: regulating physician-assisted suicide. This article focuses on the states task of specific policy making in light of the due process reasoning in Compassion in Dying and the equal protection reasoning in Quill. Policy makers must try to predict whether a particular regulation would in practice achieve its intended objective. They (...) must also try to predict whether the regulation would survive constitutional review if challenged. Finally, they must consider the extent to which they could, or should, maintain two different regulatory regimes: a more permissive one for decisions to forgo life-sustaining medical treatments, and a more restrictive one for decisions to obtain a prescription for a lethal dose of medication. This last issue will be especially challenging if the equal protection analysis in Quill prevails. (shrink)

This Article is a socio-legal analysis of the California State Bar lawyer discipline system. The article draws on legal professions theory, legal ethics, legal history, and cultural analysis, and it is based on archival data, interviews with State Bar actors, and empirical data on the Bar's disciplinary system. The article examines the historical and cultural context of a perceived crisis in California State Bar lawyer discipline in the 1980s and 1990s and concludes that, while the crisis stemmed (...) from demonstrable organizational ineffectiveness in the lawyer discipline system of the State Bar, it also needs to be understood as part of a larger--and recurring--crisis of professionalism in the legal profession.The article also examines the Bar's response to the discipline crisis and argues that, contrary to the bar's harshest critics (and critical professions theory), the reforms initiated by the Bar and imposed by the state legislature improved the lawyer disciplinary system in California. Nevertheless, the article concludes that organizational and structural factors identified in this study limit the effectiveness of any system of lawyer self-regulation. (shrink)

The article describes the main publications of emigrant press during the period of 1945-1990. These publications reflect a significant contribution to the academic research of the constitutional development problematics of an independent Republic of Lithuania in 1918-1940, made by the emigrants who escaped Soviet aggression by going to the West. Among emigrants these topics were mostly analysed and described at the time when any possibilities of objective academic research in Lithuania were widely limited by Soviet ideology and politics. Exceptional attention (...) of emigrant authors was attracted by the democratic constitutional structure of Lithuania, established by the Constituent Assembly. The article describes the academic research made by emigrants on the main constitutional acts established by the Constituent Assembly, such as the resolution of the 15th of May, 1920, ascertaining the fact of reconstructing the independence of the state of Lithuania, as well as the Constitution of Lithuania of August the 1st, 1922. (shrink)

It is inevitable that some inmates in large state prison systems will suffer from terminal conditions and die while incarcerated. But how those inmates experience that event is primarily controlled by correctional policies and by the prison medical and correctional staff assigned to their care. Compassion for inmates who are dying cannot be legislated or mandated, but humane and compassionate care for the dying can be facilitated or thwarted by legislative and correctional policies, and by the manner in which (...) correctional personnel interpret those policies.Death in New York State prisons is a frequent event, occurring at a rate substantially higher than that in most other states. With a prison population that has risen to 70,000 inmates and with the nation’s highest rate of human immunodeficiency virus infection, more than 2,817 inmates died in New York prisons during the period 1990-1998. In April 1992, in the face of an ever-increasing death rate in its prisons, the New York State legislature passed the Medical Parole Law, a measure designed to permit dying inmates to be released on parole prior to their normal release eligibility date. (shrink)

"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This book defends a (...) mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

ExcerptThe modern understanding of the public sphere is inseparable from criticism: the public is the space in which criticism can be articulated most effectively. The critical public emerged historically as a platform for individuals to call into question the decisions of state authority, especially when those decisions were taken outside the public view, as was typical for the premodern state—although the penchant for secrecy in government certainly lives on today. The public sphere stretches across multiple fields: individual discussion, (...) journalistic reportage and evaluation, and deliberative parliamentary institutions, no matter how much current legislatures fail on that score. In a broad…. (shrink)

As men and women increasingly share access to state power, there has been a question of whether women’s rising descriptive representation leads to substantive change, and a sizable body of literature suggests it does. As a mechanism for this effect, I theorize legislatures as gendered organizations that build gender into their institutional operation, as enmeshed in legislative committee systems. Using case studies of Germany, Sweden, and the United States, I examine 40 years of data collected on legislative committees (...) and memberships. This study reveals some similarities, where all committee systems emphasize gender-typed roles, particularly female legislators’ greater segregation into social issue committees. Yet, gender is constructed differentially across these organizations, and the nations vary in the gender structure of their committee systems, degree of gender segregation and typing, and gendered relations of power and prestige. Implications for integrating theories of gender as an institution, gendered organizations, and feminist institutionalism are discussed. (shrink)

China has for almost four decades been experiencing a market transition and an associated tax state transition, leading to the emergence of capitalists who increasingly control economic resources and serve as important sources of tax revenue. Some theories suggest that these changes should give capitalists political power. From the perspective of the taxation institution, using a mechanism-based case study, this article investigates whether China’s emerging capitalists have gained bargaining power with the party-state. Findings suggest that hidden bargaining, patron-clientelism, (...) legislature co-optation, and legal repression constrain their bargaining power. The underinstitutionalized taxation system has co-opted the capitalists through patronage and, more important, deterrence, thereby building an asymmetric mutual dependence between the local state and capital owners. (shrink)

This essay proposes a re-reading of the process of establishing the post-colonial nation-state in Algeria, and of the dynamics of citizenship in the light of gender, in order to illuminate the hesitations of the political class as to the meaning of the principle of universal emancipation and sexual equality in the private sphere of personal status. Whereas up to now readings studying the nature of the Algerian political regime and its ideological discourse have been solely concerned with denouncing the (...) "moribund" character of modernism and/or "Algerian-style" socialism, the argument will deal mainly with the private domestic sphere in order to expose ideological references and representations that are decidedly traditionalist, if not archaic, as regards gender relations in the Algerian family, idealized by the legislation underlying the Family Code (1984/2005). Finally a detailed review, based on an analysis by gender, of the minutes of parliamentary debates in the legislatures from 1982 to 1984 will demonstrate the highly patriarchal nature of the cultural representations of Algeria’s decision-makers, who are reluctant to extend "modernization" to the female population. (shrink)

Despite far‐reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In (...) a brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems. (shrink)

Every ten years United States congressional districts are drawn, physically constructing political representation based on domicile. Why do we do it this way? Is territorial representation consistent with the broader normative ends of political representation). ;In section one I argue that territorial constituencies were never intended to represent local "communities of interest." Instead, physical proximity between voters was necessary to achieve the normative aims of representative government in a large nation. I begin in 13 th century England, and proceed through (...) the political theory of Hobbes, Locke, Montesquieu, Burke, the Federalists and their critics. I also provide a novel interpretation of Federalist 10. ;In sum, territory was a habit of mind for the founders of the United States, and thus there were no explicit reasons given for using territory. The silence of territory as a definer of electoral constituencies has continued to the present day. I argue that the continued silence about territorial constituencies constitutes a substantial breech of legitimacy. ;In the second section , I argue that "constituency definition" is a normatively rich institution and how constituencies are defined ought not to be determined by interested third parties. I argue that Hanna Pitkin incorrectly conflated "political representation" and "legitimacy." I argue that citizen consent to constituency definition is a central part of legitimating any representative government. Finally, I argue that there are no persuasive normative arguments for territorial constituencies today. Justifying territorial constituencies on the normative claim that "communities of interest" ought to define constituencies for political representation is simply unpersuasive. If one believes such particularity ought to be represented in one branch of the national legislature, then other kinds of particularity---race, ideology, class, et al---simply dominate. ;In section three I argue against "particularity" for electoral constituencies. I conclude with a thought experiment: randomly assign voters into 435 national, electoral constituencies for life. Having established that the concept of "constituency" is itself normatively robust and separable from "electoral systems," I argue that important considerations of "voice," can be introduced through novel means of reform. (shrink)

Automated decision-making takes up an increasingly significant place in the administrative state. This article presents a conception of discretion that is helpful for evaluating the proper place of algorithms in public decision-making. I argue that the algorithm itself is not a site of discretion. The threat is that automated decision-making alters the relationships between traditional actors in a way that can cut down discretion and human commitment. Algorithmic decision-makers can serve to fetter the discretion that the legislature and the (...) populace expect to be exercised. We must strive to maintain discretion, moral agency, deliberative ideals, and human commitment through the system that surrounds the use of an algorithm and to develop a new expertise that can retain and exercise the expected discretion. Backing this argument are traditional legal constraints, public expectations, and administrative law principles, tied together through the organizing principle of discretion. (shrink)

In 1988, the California state legislature passed the California Street Terrorism Enforcement and Prevention Act, which allowed courts to “enhance” the sentences of offenders who have been proven to "promote, further, or assist in any criminal conduct by gang members." It bundled together criminality, policing, and incarceration in ways that drew upon the fears of the black/latino Others that were imminent in panics surrounding the “crack epidemic” and inner-city crime. Jumping to April 2016, the Salvadoran government has passed strikingly (...) similar legislation, which centers on reclassifying gang-associated crimes as terroristic; in essence under their new laws gang affiliation is a terrorist. This, too, has been enacted in the midst of panic about gang violence and low-level warfare between gangs and the Salvadoran state. The adoption of US-style anti-gang approaches by the Salvadoran government is not new. In 2003, the right-wing government passed mano dura [“iron fist”] policies that sought to address increases in gang associate crime with zero-tolerance, tough-on-crime measures. Law enforcement received expanded leeway to target and arrest gang members, especially those from Mara Salvatrucha 13 and Barrio 18. Despite the lack of sustained reductions in violent crime, the mano dura policies have remained and will only be exacerbated by the new legislation. (shrink)

Within the Irish government there is a discussion regarding the possibility of limiting the legal protection afforded to the confessional secret. This paper addresses the question of whether this suggestion, if it were to be implemented by the legislature, would be compatible with the right to religious freedom under Article 9 of the European Convention on Human Rights (ECHR). This text will also highlight the role of the confessional secret in canon law and the protection of it under German law. (...) Catholic priests, should this plan that is currently under discussion be implemented, were obliged to disclose the knowledge gained in confession to law enforcement authorities. The canonical consequence of such a breach of the confessional secret would be excommunication. In such cases priests therefore would only have the choice between breaking the law (which would probably also be punishable under criminal law) and excommunication, with all the resulting disadvantages. In this paper, the canonical law rules regarding confession are presented before the provisions relating to the confessional secret in § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 383 para. 1 No. 4 of the Code of Civil Procedure and § 139 para. 2 of the Criminal Code are discussed. Specifically, the question is raised as to whether a duty of priests to co-operate with the law enforcement authorities may be established by law. Here in particular the protection of the confessional secret under the protection of freedom of religion under Article 9 of the European Convention on Human Rights will be discussed. It has to be noted however that the protection afforded by Article 9 of the European Convention on Human Rights extends far less than the scope of § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 129 para. 2 of the Criminal Code and § 383 para. 1 No. 4 of the Code of Civil Procedure, as Art. 9 ECHR only protects the confessional secret as far as it is required from a religious point of view, but not a general pastoral secret. The article then includes a discussion on the limitations of Article 9 ECHR. Limitations of Article 9(1) ECHR on religious freedom under Article 9(2) ECHR are only permitted if they are prescribed by law and necessary in a democratic society for the protection of public order, health, morals or the rights of others. This is discussed against the background of the legislative goal of more effective law enforcement. As a result, a limitation of the protection of confessional secret through normal (sub-constitutional, domestic) laws, despite the understandable goal of more effective law enforcement, is not compatible with Article 9 of the ECHR. (shrink)

The necessity defense is barely accepted in contemporary Western case law. The courts, relying on the opinion held by the majority of legal scholars, have reduced its margin of application to practically zero, since in the framework of contemporary welfare states, there is almost always a “legal alternative.” The needy person who acts on their own behalf, regardless of whether they save an interest higher than the one they injure, does not show due deference to democratic legal solutions and procedural (...) channels. This article aims to contest this abrogative interpretation of the necessity defense and to outline the limits of its legitimate scope. Even in welfare states, there are actions in a necessity scenario that neither question the legal decisions of the democratically elected legislature nor make a mockery of established procedural channels. (shrink)

The article addresses the potential impact of functional brain imaging (functional magnetic resonance imaging and positron-emission tomography) on surrogate end-of-life decision-making in light of varying state-law definitions of consciousness, some of which define awareness behaviorally and others functionally. The article concludes that, in light of admonitions by neuroscientists that functional brain imaging cannot yet replace behavioral evaluation to determine the existence of consciousness, state legislatures, courts and drafters of written advance healthcare directives should consider treating behavior, not (...) function, as the touchstone for end-of-life decision-making. (shrink)

Like Hobbes and unlike Locke, Kant denied the possibility of a right to rebellion. But unlike Hobbes, Kant did not argue for a unitary head of state in whom legislative, judicial, and executive powers are inseparable, and thus did not believe that the executive power in a state to whom must be conceded a monopoly of coercion also defines all rights in the state. Instead, Kant insisted upon the necessary division of authority in a state into (...) a separate legislature, executive, and judiciary, and thus, while rejecting the idea that a people could ever rightfully overthrow their entire constitution or government, he could and did hold that a people represented by a parliament have genuine rights against the executive power within their state even though that executive power properly has a monopoly on the coercive enforcement of the parliament's laws. (shrink)

This biography, the first of Richard Spencer Childs, begins in the Progressive Era when Childs initiated and pursued two fertile ideas: the short ballot doctrine and the council-manager plan. Childs understood that the simplification of the task of the voter was a question pressing for solution and that the council-manager plan would transform municipal government. This comprehensive work discusses other aspects of Childs' broad reform agenda. His proposals included: county government reform; reform in state government administration; unicameral state (...) legislatures; reapportionment of state legislatures; selection of judges by appointment; replacement of elective county coroners with appointed professional medical examiners; democratization of state political parties; and reform of the Presidential nominating system. Based on Childs' papers and personal interviews with Childs, this biography advances scholarship on the Progressive Era and contributes to the historiographical debate on the nature of reform. (shrink)

Recently, the discussion regarding the physicians’ “Right of Conscience” has been on the rise. This issue is often confined to the “reproductive health” arena within the political context. The recent dispute of the Bush-Obama administrations regarding the legal protections of health workers who refuse to provide care that violates their personal beliefs is an example of the political aspects of this dispute. The involvement of the political system automatically shifts the discussion regarding physicians’ ROC into the narrow area of “reproductive (...) health laws.” Indeed, the immediate association that comes to mind when thinking about the practical implications of this dispute is related to the reproductive health arena. This is partly because of the historical context of the first “conscience clauses,” initially enacted by Congress and state legislatures in the mid-1970s; in fact, most of these clauses provided specific exemptions for abortion and few exempted sterilization as well. (shrink)

This issue’s “Legal Briefing” column covers recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the problem continues (...) to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two define the problem of medical decision making for the unbefriended. The remaining 12 categories describe different solutions to the problem. The first six of these solutions are discussed in this article (Part 1). The last eight solutions will be covered in the Summer 2012 issue of JCE (Part 2). 1. Who are the unbefriended?2. Risks and problems of the unbefriended3. Prevention: advance care planning, diligent searching, and careful capacity assessment4. Decision-making mechanisms and standards5. Emergency exception to informed consent6. Expanded default surrogate lists: close friends7. Private guardians8. Volunteer guardians9. Public guardians10. Temporary and emergency guardians11. Attending physicians12. Other clinicians, individuals, and entities13. Institutional committees14. External committees. (shrink)

Katie Watson (2022) writes that “If the Supreme Court shifts the question of legality in whole or in part to state legislatures, the ethics of abortion will become an even more intense subject of debate in public, academic, and clinical realms. Therefore, this is the moment for all bioethicists to strengthen our teaching, thinking, and writing in abortion ethics” (emphasis added). . . Persuading broader audiences that ethicists might be able to help advance pro-choice causes is thereby essential (...) to implementing Watson’s suggestion that bioethicists get more engaged. What good ethicists might do depends on others taking advantage of what they have to offer: that this would need to happen is my focus here. (shrink)

In the summer of 1998, the Wisconsin State legislature amended its child protection laws. Under new child abuse provisions, Wisconsin judges can confine pregnant women who abuse alcohol or drugs for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. The South Dakota statute requires mandatory drug and alcohol treatment for pregnant women who abuse those substances and classifies such activity as child abuse. In addition, the South Dakota legislation gives relatives the power to commit pregnant (...) women involuntarily for two days; a court order can place the pregnant women in custody for up to nine months. These recent legislative “successes” follow scores of failed attempts by legislators in other states to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy. (shrink)

In the summer of 1998, the Wisconsin State legislature amended its child protection laws. Under new child abuse provisions, Wisconsin judges can confine pregnant women who abuse alcohol or drugs for the duration of their pregnancies. South Dakota enacted similar legislation almost simultaneously. The South Dakota statute requires mandatory drug and alcohol treatment for pregnant women who abuse those substances and classifies such activity as child abuse. In addition, the South Dakota legislation gives relatives the power to commit pregnant (...) women involuntarily for two days; a court order can place the pregnant women in custody for up to nine months. These recent legislative “successes” follow scores of failed attempts by legislators in other states to establish fetal protection laws aimed at women who use and abuse drugs and alcohol during pregnancy. (shrink)

This issue’s “Legal Briefing” column continues coverage of recent legal developments involving medical decision making for unbefriended patients. These patients have neither decision-making capacity nor a reasonably available surrogate to make healthcare decisions on their behalf. This topic has been the subject of recent articles in JCE. It has been the subject of major policy reports. Indeed, caring for the unbefriended has even been described as the “single greatest category of problems” encountered in bioethics consultation. Moreover, the scope of the (...) problem continues to expand, especially with rapid growth in the elderly population and with an increased prevalence of dementia.Unfortunately, most U.S. jurisdictions have failed to adopt effective healthcare decision-making systems or procedures for the unbefriended. “Existing mechanisms to address the issue of decision making for the unbefriended are scant and not uniform.” Most providers are “muddling through on an ad hoc basis.” Still, over the past several months, a number of state legislatures have finally addressed the issue. These developments and a survey of the current landscape are grouped into the following 14 categories. The first two categories define the problem of medical decision making for the unbefriended. The remaining 12 describe different solutions to the problem. The first six categories were covered in Part 1 of this article; the last eight categories are covered in this issue (Part 2). 1. Who are the unbefriended?2. Risks and problems of the unbefriended3. Prevention: advance care planning, diligent searching, and careful capacity assessment4. Decision-making mechanisms and standards5. Emergency exception to informed consent6. Expanded default surrogate lists: close friends7. Private guardians8. Volunteer guardians9. Public guardians10. Temporary and emergency guardians11. Attending physicians12. Other clinicians, individuals, and entities13. Institutional committees14. External committees. (shrink)

Prior to its publication, Gary Cox's MakingVotesCount was widely and eagerly anticipated. (Indeed, some years ago, I received a referee report dismissing my submission as unnecessary because superior analysis would eventually appear in Cox's then forthcoming manuscript.) Upon its release in 1998, the book was instantly lauded: it collected multiple awards, including the prestigious Woodrow Wilson prize for best book published on government, politics, or international affairs. This acclaim was scarcely surprising – Cox has been one of the foremost scholars (...) of elections and legislatures for the whole of his professional career. He is responsible for an impressive body of work spanning multiple research topics, nations, and methods of analysis. This book is testimony to his breadth, as it catalogs the key electoral features of virtually the whole set of modern democracies (more than 70), and makes frequent forays into diverse nations in search of empirical support for novel theoretical findings. In brief, Cox's project is to bring together a large formal, deductive literature on voting rules and social choice with an equally voluminous empirical, inductive literature on elections and party systems in the world's democracies. The prizes it garnered are one measure of the book's success at this merger; a large boost in Cox's swelling citation count will doubtless follow, reiterating the judgement that this is the major work on electoral law and voting to date. (shrink)

This article describes a new prenatal genetic test that is painless, early, and increasingly available. State legislatures have reacted by prohibiting abortion for reason of fetal sex or of fetal diagnosis and managing genetic counseling. This article explores these legislative responses and considers how physicians and genetic counselors currently communicate post-testing options. The article then examines the challenges ahead for genetic counseling, particularly in light of the troubling grip of abortion politics on conversations about prenatal diagnosis.

The year 2014 brought a new development in the bioethics “laboratory of the states.” Five states adopted “right to try” laws intended to promote terminally ill patients' access to investigational drugs. Many more state legislatures are now considering such laws. The campaign for right to try laws is the latest move in an ongoing effort to give seriously ill patients access to drugs whose safety and effectiveness remain largely unknown. Although scientists and policy‐makers oppose the right to try (...) approach, it has proven quite popular among state legislators and the public. (shrink)

An empirical exploration of the effects on legislative structure, distribution of influence, power, and decision outcomes, of recent changes in the Congress and state legislatures. The book focuses on changes in rules, parties, and committees and the impact or lack of impact of these changes on subsequent activity. Originally published in 1978 by D.C. Heath and Company. Co-published with the Policy Studies Organization.

Amid efforts to limit “divisive concepts” in educational settings, this article investigates the obstruction of a civic-focused early childhood curriculum. Joy Dangora Erickson and Winston Thompson analyze the challenges faced by a resourceful kindergarten teacher striving to uphold curriculum goals despite constraints imposed by the state legislature. Through an empirically informed exploration of political and pedagogical factors, this conceptual analysis elucidates the moral complexities of risks, costs, and outcomes as educators navigate non-ideal political conditions. By doing so, the authors (...) provide valuable insights to scholars and practitioners, suggesting productive avenues for future research on these and related dilemmas of practice. (shrink)

This article examines the rise of the anti-vaccination movement, the proliferation of laws allowing parental exemptions to mandatory school vaccines, and the impact of the movement on immunization rates for all vaccines. It uses the ongoing debate about the Human Papillomavirus vaccine as an example to highlight the ripple effect and consequences of the anti-vaccine movement despite robust evidence of the vaccine's safety and efficacy. The article scrutinizes how state legislatures ironically promote vaccination while simultaneously deferring to the (...) opposition by promulgating broad opt-outs from mandatory vaccine laws. This article concludes by offering an alternative legislative approach to specifically combat the anti-vaccine movement's impact on HPV vaccination rates. Lowering the age of consent has not been widely attempted or proposed and provides an alternative statutory mechanism to push back against vaccine resistance. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Stanley Cavell and Criticizing the University from WithinMichael FischerStanley Cavell has spoken often of his "lifelong quarrel with the profession of philosophy" but he has said less about the university as a whole and its pressures on all academic disciplines, philosophy included. 1 In Cavell's work, "academic" or "professional" philosophy takes shape in an institutional context he has not yet fully analyzed. I want here to extrapolate from Cavell's (...) work a critical, yet sympathetic, response to the university that I think is especially needed today, when the rise of the so-called corporate university is intensifying some of the professional pressures that Cavell resists.Cavell's discomfort with academic philosophy stems in part from what he regards as its narrowness, specifically, its marginalization of Ludwig Wittgenstein and other philosophers, not to mention Henry David Thoreau and Ralph Waldo Emerson, the comedies of remarriage, and other work that Cavell cares about. In his view, the professional marginalization of these writers partly results from their exemplifying what can seem to be a vague moral seriousness, even at times a prophetic urgency, that calls for something akin to conversion rather than issuing in specific conclusions or reforms. According to Cavell, academic philosophy, by contrast, subsumes moral concerns under ethics, a separate field in which the "point of conversation is getting the other to agree to, or to do, something." 2Although Cavell does not systematically analyze the institutional pressures on academic philosophy, he does drop some hints. As befitting a subject seeking legitimacy in the university, academic philosophy has aligned itself with teachable subjects such as science, as opposed to more elusive pursuits such as painting and creative writing, which [End Page 471] have been less at home in the university and where the necessity of university instruction may be less clear and the line between success and failure harder to draw. 3 What can be taught in academic philosophy is a method of analysis, mastery of which can be certified in students by professors and in professors by journals, promotion and tenure committees, and administrators. Subdividing philosophy into discrete fields such as ethics makes it even more manageable, or less susceptible to sweeping pronouncements that cannot be tested by experts. Finally, the interest in getting "the other to agree to, or to do, something" associates academic philosophy, or at least ethics, with measurable results and maybe even progress.The rise of the so-called corporate university has exacerbated the emphasis on teachable expertise and definable outcomes that I have been describing. Take the largest private university in the United States—the University of Phoenix—as a model that some state and non-profit private universities may be emulating as they struggle to cut costs, meet external expectations, and work with reduced budgets. At the University of Phoenix, the interest in measurable results gets recast as learning outcomes that teachers enable students to reach as efficiently as possible. Specialization narrows these learning outcomes to sharply defined skills, such as writing business memos, which students can master and build on. Finally, the emphasis on method does not simply depersonalize instruction; it reduces the need for instructors. Each instructor is tasked with teaching as many students as possible, sometimes through distance learning, with class size reaching a limit only when the learning outcomes cannot be delivered. Lacking tenure, these instructors can be replaced, like interchangeable parts, when they wear out or their student customers become too dissatisfied with them. At another rapidly growing for-profit university, DeVry, students unhappy with their instructors are assured, in the words of a campus dean, that "weak links" will be "fixed" in a "total quality management" environment. 4Along similar lines, Lindsay Waters has recently explored how "the corporate makeover of the university" and "the commercialization of higher education" have affected academic publishing. 5 Universities compete in an increasingly cutthroat marketplace and face an escalating insistence on results from state legislatures, federal agencies, accrediting associations, and boards. Capitulating to this "accountability culture" (EP, p. 20), bottom-line driven administrators have stepped up demands for faculty productivity, measured in quantitative terms by numbers of students taught, grants won, and, what most concerns Waters, books and [End... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:“Unauthorized Propositions”The Federalist Papers and Constituent PowerJason Frank (bio)The PEOPLE, who are the sovereigns of the State, possess a power to alter it when and in what way they please. To say otherwise is to make the thing created, greater than the power that created it.—Anonymous, Federal Gazette, March 18, 1789The we of the Constitution’s “We the People” was as much of an artificial construct as the Constitution (...) itself, it was its creature, not its creator.—Sheldon Wolin, The Presence of the PastIn Federalist No. 40, James Madison engaged the vexing question of whether the Philadelphia Convention of 1787 had been properly authorized “to frame and propose” the new Federal Constitution of the United States [83]. Madison explored there “the ground on which the Convention stood” [264], which he identified as the purportedly solid foundation of the people themselves [Morgan 272]. Federalist No. 40 offers a theoretically probing yet avowedly practical reflection on the availability of foundations and on dilemmas of popular authorization in times of constitutional crisis; it may be productively read as an exemplary eighteenth-century American reflection on a state of exception. As such, Federalist No. 40 provides helpful orientation to how the popular constitutionalism of the revolutionary and postrevolutionary years confronted and navigated—if never fully resolved—some of the most insistent paradoxes of modern democratic theory.In No. 40, Madison was preoccupied with the theoretical and historical dilemmas surrounding the eighteenth-century American conception of the people’s constituent power—that is, the ultimate power of the people to alter fundamental law “when and in what way they please.”1 However, in contrast to most contemporary theoretical approaches to constituent power—whether influenced by the political theology of Carl Schmitt or the immanentist optimism of Michael Hardt and Antonio Negri—Madison’s navigation of the attending dilemmas of popular authorization resisted the turn to metaphysical abstraction and the appeal to a transcendent or immanent absolute. In his approach to the problem of constituent power, Madison insisted on the productive irreducibility of institutional mediation and the performative elicitation of a retrospective authorization by the people. While accepting the absence of a firm ground of legal authorization (the unbroken authority of law), Madison also rejected a wholly extralegal or unmediated appeal to the people themselves (the transcendental appeal to spirit beyond the letter of the law). Instead, he endorsed a political navigation of these dilemmas in medias res. Confronting [End Page 103] the dilemma of constituency—how does the people give birth to itself as a self-authorizing subject?—Madison shifted the register of discourse away from the formal and juridical and toward the informally ethicopolitical. Doing so, he was able to affirm a rupture in law while simultaneously enlisting another register of normative continuity. This essay outlines Madison’s productive encounter with these dilemmas in The Federalist, and suggests the relevance of his example for recent debates in democratic theory, too often captivated by the formal rubrics of “norm” and “exception.”1The government which [the Federalists] are so enthusiastically fond of is as yet an ideal phantom, a chimera, a mere theory detested and execrated by every true friend to government.—“One of the People,” Carlisle Gazette, January 9, 1788Madison wrote Federalist No. 40 as a response to widespread and persuasive Anti-Federalist claims that the Philadelphia Convention had exceeded the mandate granted to it by the Annapolis Convention of 1786 and the Congressional Act of 1787, both of which authorized the meeting of the Philadelphia Convention “for the sole and express purpose of revising the Articles of Confederation” [259]. While the Philadelphia Convention was, in Bruce Ackerman’s words, “expressly subordinated to existing institutions and procedures” [Ackerman 43], it had nonetheless produced an entirely new constitutional text and—theoretically more problematic for Madison—an entirely new procedure for its popular ratification [see also Ackerman and Katyal]. Under Article 13 of the Articles of Confederation, constitutional reform could come about only through the unanimous assent of the thirteen state legislatures.2 Under the Philadelphia Convention’s plan, the ratification of the proposed constitution would bypass the constituted power of the state legislatures and appeal instead to the... (shrink)

This is a qualitative study of the role of gender and emotion in a political setting. The data are from interviews of activists and legislators, as well as from archival accounts of the debates in state legislatures about breast cancer informed consent legislation. I found that proponents for and against the legislation shared the belief that women are more emotional than men. This social belief shaped the political strategies the activists adopted and initially contributed to their effectiveness; however, (...) their opponents claimed that the women activists should be dismissed because their emotionalism made them irrational. I close by discussing Western cultural beliefs about emotions, social stereotypes regarding women, and their consequences for women activists in political arenas. (shrink)

This paper considers the efficiency of the political market in the California State legislature. I analyzed the property tax limitation voter initiative, Proposition 13. I found that districts which supported Proposition 13 more strongly were more likely to oppose the incumbents regardless of whether the incumbents had the different preferences for property taxes from their districts. I also studied how legislators voted on the bills adopted after the passage of Proposition 13 to finance local governments. I found that legislators (...) tended to follow the constituents tax-cutting message expressed by the passage of Proposition 13. (shrink)