Political Process

Constitutional Law Article

Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design

Vol. 123 No. 3 This Article explores how the separation of powers affects voter’s electoral strategies, and how this interaction influences the performance of different institutional arrangements. We show that when one political agent, such as the President, acts unilaterally, voters are likely to respond asymmetrically to policy successes and failures in order to offset the risk that the President may be biased or “captured” by special interest groups. When political agents act in concert – such as when the President seeks congressional authorization for a policy initiative – voters prefer a more refined strategy, with less acute asymmetries between political rewards and punishments.
Constitutional Law Foreword

System Effects and the Constitution

Vol. 123 No. 1 A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. Familiar examples include Condorcet’s paradox, and the Prisoner’s Dilemma. Public law is rife with system effects that are more important and less familiar. Although such effects are sometimes recognized in local contexts, they have a common analytic structure and can profitably be analyzed in global terms. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order is to be democratic, each of its component institutions must be democratic, taken one by one; and (2) the fallacious assumption that if judges are politically biased, courts must issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory.