Jacob Eisler

This Article identifies a radical transformation in constitutional law methodology: the central project of constitutional analysis has changed from offering value-neutral theories of interpretation to observing and critiquing conservative forces that undermine popular self-rule. This is most apparent in scholarly reactions to the Roberts Court’s refusal to strike down legislation that promulgates voter suppression, partisan gerrymandering, and abortion restrictions. Scholars treat these decisions to leave legislation standing as a direct assault on democracy, a distinction previously reserved for decisions that struck down legislation (such as Lochner v. New York).This new paradigm indicates a radical realignment in academic evaluation of judicial review, with a focus on substance rather than procedure.

This Article illuminates this shift by observing scholars’ novel invocation of the ‘countermajoritarian difficulty.’ Widely recognized as the obsession of law professors for the past century, the countermajoritarian difficulty traditionally queries, why do non-accountable judges have authority to interdict decisions by elected representatives? The threat of far-right extremism has inspired constitutional law scholars to use countermajoritarianism to denote any political
influence – the conservative-dominated judiciary, Republican legislatures, or polarized right-wing voters – that is perceived as exacerbating democratic backsliding. This changing use of countermajoritarianism portends a wider shift in constitutional theory. The classical approach to the countermajoritarian difficulty aspires to use general principles of constitutional analysis to reconcile independent judicial review with popular self-determination. This approach provides
abstract explanations of constitutional interpretation and avoids openly committing to ideological or policy positions. Conversely, the new trend defines any threat to legitimate democratic self-governance as countermajoritarian. PCM constitutional theory thus takes as its starting point a set of substantive moral commitments.

Polarized countermajoritarianism has a dramatic effect on doctrinal analysis. Traditionally, scholars invoke countermajoritarianism when courts strike down legislation. The new trend identifies it where courts allow legislation to stand but such inaction fails to protect democratic process against attacks from the far right. This Article posits that this radical shift in doctrinal analysis is a response to the loss of civic unity and democratic consensus in American politics.
Polarized countermajoritarianism highlights the fragile condition of contemporary democracy but relinquishes the analytic clarity of classical countermajoritarianism––a tradeoff scholars and jurists must incorporate into future analysis.

The fruit of a referendum should be political clarity. The people have spoken; the state will act in accordance with their wishes. Yet the Brexit referendum had the opposite effect. After a majority of the UK electorate who voted in the referendum indicated a preference to leave rather than remain in the European Union, the representative government fell into divisive conflict over what policy should be adopted as a response to the expression of popular will. This is the antithesis of the clarity that a referendum should produce. Why has this happened? This Essay argues that, beyond the political and social complexities of Brexit, the subsequent instability can be traced to the humble realities of referendum question design. The referendum pitted a concrete proposal with clear legal consequences (Remain) against a question of principle with no explicit indication of subsequent government action (Leave). In doing so, the Brexit referendum deviated from well-established principles of referendum design by presenting voters with two non-comparable alternatives. Damningly for post-referendum governance, the result of the referendum offered the government little clear legal guidance, but rather simply constrained its policy-making flexibility. Such a referendum outcome forces representative government to exercise general policy-making discretion, but with a constrained palette of policy options which specifically exclude the first-choice preference of many voters. This Essay uses classical tools of political science to interpret this confusion in democratic governance, and draw forth general lessons regarding the interaction between referendum design and representative politics. Specifically, it applies spatial modelling of political competition to identify how flawed referendum design upsets the relationship between representatives and voters.

Data analysis has transformed the legal academy and is now poised to do the same to constitutional law. In the latest round of partisan gerrymandering litigation, lower courts have used quantitative tests to define rights violations and strike down legislative districtings across the country. The Supreme Court’s most recent opinion on partisan gerrymandering, Gill v. Whitford, hinted that quantitative tests may yet define the constitutionality of partisan gerrymandering. Statistical thresholds thus could be enshrined as constitutional protections and courts recast as agents of discretionary policy.
This Article describes how excessive dependence on metrics transforms judicial decision-making and undermines rights enforcement. Courts enforce constitutional law to ensure governmental compliance with rights, not to advance alternative policy arrangements. Yet the core of rights is moral principle, not descriptive conditions in the world. If quantitative outcomes are used to define rights, the moral character of judicial rights enforcement is undermined, and courts act as quasi-regulatory entities that compete with democratically elected branches. Arguably the most condemned decision of the twentieth century, Lochner, reflected such a quasi-regulatory approach to rights enforcement; excessive reliance on statistics threatens to repeat that mistake.
The law of partisan gerrymandering needs a new principle, not new metrics. The best principle to identify partisan gerrymandering is the right to fair representation, which is violated when legislatures seize partisan advantage in democratic process. Quantitative analysis should have the sole function of proving that alleged partisan gerrymanders seek such advantage.
This Article thus identifies a novel and troubling trend in constitutional law and describes how it dominates a topic of immediate practical importance. It then offers a general framework for conceptualizing rights protection and applies it to this pressing doctrinal issue.

Product liability law has struggled to develop a test for identifying when products are defective under the Consumer Protection Act 1987 (“CPA”). In Wilkes v Depuy International Ltd. [2016] EWHC 3096 (QB), Hickinbottom J. offered the most prolonged reflection on product defect since A v National Blood Authority [2001] EWHC 446 (QB), and rejected much of the framework of NBA. However, Wilkes provides little guidance regarding when products should be identified as being defective, reinforcing the need for a more deeply grounded approach.

Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test.

This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.

In McDonnell v. United States, the Supreme Court constrained the reach of federal anti-corruption law, declared the inevitability and even desirability of representatives aggrandizing favored constituents, and asserted patronage to be a hallmark of democracy. The unanimous decision is the latest and clearest indication that the Court will frustrate regulations that require officials to discharge their roles with disinterested neutrality.
This article demonstrates the impact of the Court's minimalist view of integrity through political philosophy and game theory. Given the Court's hostility to regulatory prohibition of self-interested political behavior, the final bulwark of public-minded governance is the electorate, which must use the ballot box to reject corrupt representatives. Additionally, the Court's position erects significant obstacles for campaign finance progressives and advocates for institutional political reform. The article concludes that implementing civic anti-corruption requires either jurisprudential innovation or novel approaches to enforcement.
This article thereby integrates the history of modern anti-corruption law with the latest leading decision on the topic, weaves together the Court's blackletter doctrine with its substantive politics, describes the impact of the law on democratic governance, and points the way forward for both scholarship and policy.

Guided by a pair of decisions from 2010 (Citizens United and Skilling), this article investigates a pivotal but overlooked dispute between the Supreme Court and Congress over the acceptable contours of public corruption law. Each case narrowly relies on principles and precedents that appear only tangentially related to corruption. Yet in historical context, these cases emerge as only the latest judicial nullification of broad and flexible congressional anticorruption legislation. Through parallel examination of campaign finance regulation and honest services law, this article suggests a subtle but striking pattern: when Congress has advanced expansive, flexible anticorruption measures, the Supreme Court has tenaciously constrained such measures in favor of narrowly drawn bright-line rules.
This article argues that the disagreement originates in the institutions' differing postures towards anticorruption. Certain congressional action has promoted civic-minded public conduct and thus facilitated  deliberative" examination of political motives. However, the Supreme Court has generally blocked broadly constructed anticorruption measures because their enforcement threatens constitutionally protected individual rights. Thus, the Court has left standing a "competitive" anticorruption regime which presumes a market-like political setting populated by self-interested actors.
This unspoken divergence has shaped corruption law and with it the nature of American politics. The Court's intractability poses a dilemma for future anticorruption reform. Policy-makers must either defer to the Court, but relinquish the possibility of deliberative anticorruption achieved through traditional regulatory and prosecutorial means, or force a reconsideration of individual rights in the context of anticorruption enforcement.

Why has American campaign finance law long suffered from doctrinal confusion and sparked bitter ideological conflict? This Article demonstrates that these attributes are rooted in a judicial dispute over the cognitive and social characteristics of central actors in elections.
The Article unpacks the foundations of campaign finance law through a multi-tiered analysis of case texts. It first explicates the doctrinal deficiencies that riddle the Supreme Court's campaign finance jurisprudence. These flaws reflect the Court's clumsy engagement with democratic theory, which has been an unrecognized driver of campaign finance law and the wellspring of the partisan dispute. Conservatives assert that the pillar of democracy is free participation in the marketplace of information, and subsequently reject restriction of campaign financing even when advanced in the name of anticorruption. Conversely, liberals perceive democracy as vulnerable to systemic corruption from plutocratic influences and thus endorse regulatory oversight of campaign spending.
The latter half of the Article excavates the origins of this conflict: the factions adopt divergent positions on the cognitive and social attributes of political actors (voters, candidates, donors, and public officials). As these positions inform the factions' theories of democracy, the campaign finance quagmire can be traced to political and psychological assumptions present in the cases. Progress in campaign finance law demands revision of the relationship between these assumptions and contemporary electoral realities.

Two seemingly distinct uses of history are contemplated here, in the juxtaposition of Del Mar's essay and Getzler's. One represents an epistemological refinement, a sharpening of the conceptual tools of legal theory in a manner seemingly innocent of polemical intention. The other represents a doctrinal innovation, a bid to insinuate specific possibilities into the contemporary law of obligations by recourse to a relatively remote past, in a manner which foregrounds the failings of a predominant theoretical school and challenges its ascendancy without going on to prescribe a distinct alternative. Both of these essays stop short of aligning themselves with the historical school of jurisprudence whose renewed salience this volume seems to indicate. And indeed it may be that these three developments remain distinct and separable: the sharpening of legal theory's tools, the sounding out of possible new paradigms in the law of obligations, the revival of interest in the " historical " school represented by Savigny, Maine and Mannheim. Readers of this volume are left with work to do to join the dots; an effect of the novelty and boldness of the enterprise, but one which nevertheless gives this volume a provisional and uneven feel. But alongside earlier interventions by Brian Tamanaha

This book addresses a puzzle about liberal democracy and rule of law: If democracy’s legitimating value is the autonomy of the people, how can an impartial court transform the terms of that autonomy?

To address that puzzle, this book does two things. First, it frames and answers the question in philosophical terms. The dignity of democratic autonomy and the justice of rule of law neutrality are both essential for legitimate liberal democracy where the people rule but individual rights are respected. But in the context of electoral process, it creates a counterpopular dilemma: if courts dictate terms of elections, they intrude upon the extent of democratic autonomy. The best answer cannot solve this dilemma. It can only ameliorate it. The best approach is for courts to engage in ongoing contestation over the nature of freedom, directed toward what electoral procedures will best serve popular self-rule.

Second, this book evaluates the American election law doctrine in light of this dilemma, and this answer. It shows how the Supreme Court’s transformation of democratic process has consisted of a long-running, fiercely contested debate over the ideal of popular autonomy. Moreover, this debate has settled into two opposed sides: a conservative view that advances a libertarian understanding of just elections and a progressive view that advances an egalitarian understanding. Conservative libertarians see elections as a means for converting private power and position into political representation. They wish to maintain elections as a zone of private power and reject both state action and judicial interpretation that intrudes upon private power. Progressive egalitarians see elections as an expression of the mutualist aspects of a democracy that aspires toward civic equality. They wish to use the bench to advance a vision of democracy as a shared space of rule by equals.

This struggle over the meaning of freedom on the Supreme Court has shaped American democracy, and American life. The struggle reflects partisan allegiances, but it shows that deeper than the partisan divide is a philosophical dispute over the meaning of liberty. The Supreme Court’s battle shows a shared commitment to the ideal of liberty, as well as how deeply the different justices understand liberty, and how much these divergent understandings mean for American democracy.