February 5 roundup

  • In November I wrote in Jurist on a Third Circuit panel’s refusal to order that sports great Jim Thorpe be disinterred and reburied under provisions of the Native American Graves Protection and Repatriation Act (NAGPRA); in response, Elizabeth Varner, Diane Penneys Edelman and Leila Amineddoleh of the Lawyers’ Committee for Cultural Heritage Preservation argue that the panel could have based its result on specific language in the statute rather than via the roundabout path it did take [Jurist]
  • Electing judges, a relic of Jacksonianism, still generating problems today [John Steele Gordon, Commentary]
  • “Obama issues ‘executive orders by another name'” [USA Today on Presidential “memoranda”; earlier on executive orders]
  • “Legislators Say E-Cigarette Companies Are Bound by an Agreement Reached Before They Existed” [Jacob Sullum]
  • Woman upset at exclusion of service kangaroo but agrees to leave McDonald’s [AP, Wisconsin News, earlier (although local law may vary, federal government these days takes view that aside from qualified dogs and some miniature horses, ADA does not require businesses to accept customers’ service animals)]
  • Join the crowd: “Various plaintiffs v. various defendants,” an actual case caption [Lowering the Bar]
  • “..the very kind of odious racialization of politics that Congress wrote the Voting Rights Act to forbid” [Ilya Shapiro]


  • I don’t see why anyone should have a problem with electing judges. The rate of corruption appears to be quite low, but if it’s a concern maybe we should just ban all contributions to candidates for judge.

    The real problem with judge elections, in my view, is the opposite: voters want to know something about the judges and wannabe judges they’re voting for, but there’s little to no information available. The public never hears that judge X is very strict in immigration cases or judge Y is lenient in drug cases. I’d like to join or start an effort to bring that type of information to voters who can use it.

  • I’ve often wondered why unfairness of using “filler people” in constructing minority majority districts has been so little noted. The current mantra is that one cannot “dilute” minorities where there are enough to form a legislative district but one cannot cram excessive numbers of a minority group into a legislative district. (In jargon, no cracking and no packing.) But, to prevent “packing” one has to include in the district a number of people who are purposely dis-enfranchised so as to reach the optimum number of minority members who make up the district. (Actually the same thing occurs in purely political gerrymandering, purposely distributing a sufficient number of a political minority between several districts where they will have no influence over the outcome of the election.)

    Of course a way of avoiding all of that would be some sort of proportional representation voting system. It would come very close to solving the problem of minority representation, either racial or political. Regrettably (at least in my opinion) there is little or no appetite for such a major change. Further, there is a lot of debate for those who advocate such a change about what method of proportional representation would be best (and there are major conceptual and mechanical differences between the various methods).

    While I think it is good that some efforts are being made to address the “filler people” problem (a term invented by Sam Issacharoff) I think all will fail as long as single member legislative districts are the norm in the United States. (My solution, for what it is worth, is use of the single transferable vote method (STV) in districts in which 3 to 5 representatives are to be elected. It has had a rather checkered history here in the U.S.–partly because of poor design, that can be corrected–but it works quite successfully in Ireland and in some other jurisdictions. I’ve written about it and other proportional representation systems in the Houston Law Review, “Of Wasted Votes and No Influence” if anyone is interested.)