Jacob E. Gersen

Fiscal Consequences of Electoral Institutions

Abstract There are more than 500,000 elected local government officials in the United States. The most electorally dense county has more than 20 times the average number of elected officials per capita. This paper offers the first systematic investigation of the link between electoral density and fiscal outcomes. Electoral density presents a tradeoff between accountability and monitoring costs. Increasing the number of specialized elected offices promotes issue unbundling, reducing slack between citizen preferences and government policy; but the costs of monitoring a larger number of officials may offset these benefits, producing greater latitude for politicians to pursue their own goals at the expense of citizen interests. We predict diminishing returns to electoral density and a \documentclass{aastex} \usepackage{amsbsy} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{bm} \usepackage{mathrsfs} \usepackage{pifont} \usepackage{stmaryrd} \usepackage{textcomp} \usepackage{portland,xspace} \usepackage...

Election Timing and Public Policy

There are nearly half a million elected officials in American local governments, and the timing of local elections varies enormously even within the same state. Some local elections are held simultaneously with major federal and state races, while others are held at times when no higher level elections coincide. We analyze the effect of election timing by exploiting a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that while election timing produces dramatic changes in voter turnout, resulting changes in public policy are modest in size and not robust statistically.

Overlapping and Underlapping Jurisdiction in Administrative Law

Congress regularly enacts statutes that share government authority among many political institutions. This paper analyzes how administrative law does and should treat agency statutory interpretation in these overlapping and underlapping jurisdictional schemes. Shared jurisdiction statutes alter the incentives of administrative agencies, and can sometimes be effective tools for managing the principal-agent problems inherent in delegation. Unfortunately, judges regularly employ interpretive practices that undermine, rather than support these regimes. Particularly, in the context of Chevron doctrine - where problems of this sort arise most often - current judicial practices are in tension with the most sensible reconstruction of congressional intent.

Voters, Non-Voters, and the Implications of Election Timing for Public Policy

This paper makes use of variation in the timing of local elections to shed light on one of the core questions in democratic politics: what would happen if everyone voted? Does a low voter turnout rate imply that a small subset of special interest voters controls politics and policy? Or, are voters largely representative of non-voters such that neither the outcomes of elections nor resulting public policies would change even if everyone participated? Rather than rely on surveys of nonvoters to extrapolate their hypothetical behavior, we rely on a natural experiment created by a 1980s change in the California Election Code, which allowed school districts to change their elections from off-cycle to on-cycle. Because we are able to observe very large within-district changes in voter turnout resulting from changes in election timing, we are able to isolate the effect of turnout on policy outcomes, including teacher salaries and student achievement tests. Our analysis demonstrates that changes in voter turnout do affect public policy, but modestly.

Chevron as a Voting Rule

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

The Sex Bureaucracy

We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated area comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. The federal bureaucracy essentially required nongovernmental institutions to create mini-bureaucracies, and to develop policies and procedures that are subject to federal oversight. That oversight is not merely, as currently assumed, of sexual harassment and sexual violence, but also of sex itself. We call this “bureaucratic sex creep” — the enlargement of bureaucratic regulation of sexual conduct that is voluntary, non-harassing, nonviolent, and does not harm others. At a moment when it is politically difficult to criticize any undertaking against sexual assault, we are writing about the bureaucratic leveraging of sexual violence and harassment policy to regulate ordinary sex. An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment. Our purpose is to guide the reader through the landscape of the sex bureaucracy so that its development and workings can be known and debated.

Timing of consent

Consent distinguishes certain criminal acts from non-criminal ones. Sex without consent is sexual assault. Sex with valid consent is just, well, sex. In this chapter, we focus on one particular aspect of consent to sex – the timing of consent. That is, not whether consent is given, how consent is given, or the scope of consent that is given, but rather when consent is given. More precisely, we explore the relation between the timing of consent and these other aspects of the consent calculus, in light of the changing definitions of sexual assault in criminal law and university sexual misconduct codes. In this setting, retrospective consent offers a partial corrective for definitions of sexual misconduct that render most sex technically a violation. Keywords: sexual assault, consent, retrospective, retroactivity