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Cooter & Gilbert on Hasen & Matsusaka on the Single Subject Rule

By Lawrence Solum

Robert D. Cooter (University of California, Berkeley - School of Law) & Michael D. Gilbert (University of Virginia School of Law) have posted Reply to Hasen and Matsusaka (Columbia Law Review Sidebar, Vol. 110, No. 59, 2010) on SSRN. Here is the abstract:

The single subject rule, a widespread and oft-litigated state constitutional provision limiting ballot initiatives to one ?subject,? has confounded judges, lawyers, and scholars for decades. The problem grows from the inability to define ?subject? with precision. In A Theory of Direct Democracy and the Single Subject Rule, we attempt to solve this problem. We propose a democratic process theory of the rule, which interprets ?subjects? in terms of voters? preferences. Our theory yields a precise, objective test for determining if an initiative complies with the rule. Proper application of our test would achieve the rule?s purposes of eliminating logrolling and riding.

Professors Richard Hasen and John Matsusaka, experts in election law and direct democracy, are skeptical of our approach. We appreciate their thoughtful comments, which have contributed helpfully to the debate. However, we think their skepticism misses the mark. They seem to confuse opposition to the single subject rule itself with opposition to our test.

Here is a link to Hasen & Matsusaka paper.

Full post as published by Legal Theory Blog on September 24, 2010 (boomark / email).