Grant M. Hayden

Resolving the Dilemma of Minority Representation

This article proposes that recent work in philosophy on the issue of interpersonal utility comparisons may be used to help resolve a significant problem in minority representation. The creation of majority-minority districts has had the unintended consequence of forcing minority voting rights advocates to choose between increasing the number of minority officeholders and increasing the number of Democrats. This dilemma is, in part, due to the strict application of the one person, one vote standard. But work on the issue of interpersonal utility comparisons tells us that the one person, one vote standard is not the objective standard it purports to be; instead, it involves fairly straightforward normative judgments. The article, therefore, argues for relaxing the strict application of the one person, one vote standard in the context of minority vote dilution claims, which would allow us to numerically concentrate minority voting power through the creation of smaller majority-minority districts.

The False Promise of One Person, One Vote

This article challenges the theoretical foundations of the right to cast an equally weighted vote. That right, most elegantly captured in the phrase one person, one vote, was at the heart of the early reapportionment cases and has since become one of the hallmarks of democracy. One of the principal reasons for the success of the one person, one vote standard is that it appears to be a neutral or objective way of parsing out political power. Drawing on recent work in philosophy and economics on the nature of interpersonal utility comparisons, I demonstrate the normative character of the standard. I conclude that this well-settled legal principal is based upon a false promise of objectivity, one that has now come back to haunt us by divorcing the law from the reality of preference aggregation and preventing the development of a more complete theory of voting rights.

Law and Economics After Behavioral Economics

Economic theory is a sort of distilled common sense: it draws out the implications of the view that people act to best get what they want, given what they believe about their circumstances. That basic insight is used to build mathematical models that are intended to explain and predict human behavior. Those models are useful in many ways—most centrally, they allow us to structure incentives in order to achieve important ends. Structuring incentives on any kind of large scale is a job for governments, and the tool they use is the law. Thus, it should come as no surprise that lawmakers have looked to economic theory for guidance. And, indeed, the law and economics movement has become, by almost any measure, the most dominant school of legal thought in the last half a century. But there is sufficient reason to conclude that economic theory, as it stands, is flawed. While economic models have had their successes, a large and growing body of empirical evidence reveals that people often fail to live up to the rational-actor ideal of standard economics. Real people, it turns out, use mental shortcuts. They display systematic biases when they make judgments. And they occasionally take actions that conflict with their interests, in both the long and short term. As a result,

Some Implications of Arrow's Theorem for Voting Rights.

Arrows theorem proves that no voting procedure can meet certain conditions of both fairness and logic. In this note, Grant Hayden explores the ramifications of the theorem for qualitative vote dilution. After describing Arrow s argument, Mr. Hayden considers four democratic voting proceduresthe Condorcet method, the amendment procedure, the Borda count, and cumulative voting-in the light of the theorem. He then explores some of the theoretical and practical implications of the theorem. In the remainder of the note, Mr. Hayden discusses how well section 2 of the Voting Rights Act of 1965 and its judicial interpretation in Thornburg v. Gingles accord with the dictates of Arrows theorem, ultimately concluding that the courts should consider the first two in the light of the theorem.

The False Promise of One Share, One Vote

Shareholder democracy has blossomed. The once moribund shareholder franchise is now critical in takeover contests, merger decisions, and board oversight. However, the mechanisms of this vote remain largely undertheorized. In this Article, we use voting rights and social choice theory to develop a new approach to the corporate franchise. Political democracies typically tie the right to vote to the level of a persons interest in the outcome of the election. Corporate democracies, on the other hand, tend to define the requisite institutional interest quite narrowly, and thus restrict the right to vote to shareholders alone. This restriction has found its justification in the assumption that shareholders have a homogeneous interest in corporate wealth maximization. Such homogeneity, it is argued, maximizes efficient preference satisfaction. This assumption of shareholder homogeneity is false. It is becoming increasing clear, for example, that shareholders have many different types of interests in a corporation. In addition, stakeholders such as employees, consumers, and creditors also have interests in corporate governance that are not currently captured through existing contractual regimes. Moreover, many of the conclusions drawn from the assumption of shareholder homogeneity are either based on dated understandings of Arrows Theorem or, in some cases, are flat out inconsistent with the standard economic theory that they purport to embody. As a result, corporate voting schemes are sterile reflections of their more robust political counterparts. The Article argues that corporate law scholars should acknowledge the weaknesses of shareholder voting theory and should examine new ways of translating the preferences of corporate participants into a governance structure.