Michael C. Dorf

A Constitution of Democratic Experimentalism

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them.In democratic experimentalism, subnational units of government are broadly free to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with national objectives by means of bestpractice performance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer. The authors argue that this type of self-government is currently emerging in settings as diverse as the regulation of nuclear power plants, community policing, procurement of sophisticated military hardware, environmental regulation, and child-protective services.The Article claims further that a shift towards democratic experimentalism holds out the promise of reducing the distance between, on the one hand, the Madisonian ideal of a limited government assured by a complex division of powers and, on the other hand, the governmental reality characteristic of the New Deal synthesis, in which an all-powerful Congress delegates much of its authority to expert agencies that are checked by the courts when they infringe individual rights, but are otherwise assumed to act in the public interest. Professors Dorf and Sabel argue that the combination of decentralization and mutual monitoring intrinsic to democratic experimentalism better protects the constitutional ideal than do doctrines offederalism and the separation of powers, so at odds with current circumstances, that courts recognize the futility of applying them consistently in practice by limiting themselves to fitful declarations of their validity in principle.

Effects of Varying Color, Imagery, and Text of Cigarette Package Warning Labels among Socioeconomically Disadvantaged Middle School Youth and Adult Smokers

ABSTRACT The U.S. Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) of 2009 paved the way for the Food and Drug Administration (FDA) to propose nine different graphic warning labels (GWLs) intended for prominent placement on the front and back of cigarette packs and on cigarette advertisements. Those GWLs were adjudicated as unconstitutional on the ground that they unnecessarily infringed tobacco companies’ free speech without sufficiently advancing the government’s public health interests. This study examines whether less extensive alternatives to the original full-color GWLs, including black-and-white GWLs and text-only options, have similar or divergent effects on visual attention, negative affect, and health risk beliefs. We used a mobile media research lab to conduct a randomized experiment with two populations residing in socioeconomically disadvantaged communities: biochemically confirmed adult smokers (N = 313) and middle school youth (N = 340). Results indicate that full-color GWLs capture attention for longer than black-and-white GWLs among both youth and adult smokers. Among adults, packages with GWLs (in either color or black-and-white) engendered more negative affect than those with text-only labels, while text-only produced greater negative affect than the packages with brand imagery only. Among youth, GWLs and text-only labels produced comparable levels of negative affect, albeit more so than brand imagery. We thus offer mixed findings related to the claim that a less extensive alternative could satisfy the government’s compelling public health interest to reduce cigarette smoking rates.

Could the Occupy Movement Become the Realization of Democratic Experimentalism’s Aspiration for Pragmatic Politics?

Critics of pragmatism sometimes complain that the pragmatist insistence only upon what “works” misunderstands that means can only be defined in terms of ends. Yet pragmatists do not deny the need for ends. In both ordinary life and in politics, pragmatism instead insists only that ends are provisional, subject to being revised through the exploration of means. The Occupy movement may be an illustration of pragmatist politics in action. Derided by its critics for lacking a substantive agenda, Occupy is best understood as a democracy movement that aims to substitute empowered citizen decision making for elite rule. Seen this way, Occupy could provide fertile ground for nurturing the institutions of democratic experimentalism.

Create Your Own Constitutional Theory

In his thoughtful and thought-provoking article, How to Choose a Constitutional Theory, Professor Fallon offers assistance to those bewildered by the large number and variety of constitutional theories. His insightful account sheds light on what is at stake in the constitutional theory debate, showing the premises shared by its participants. Nonetheless, I am dubious about Fallons basic undertaking. The title suggests that the choice of a constitutional theory precedes the formulation of answers in particular cases: one chooses a constitutional theory and then applies it to constitutional cases. Yet in practice, matters typically proceed in the opposite direction.

Using graphic warning labels to counter effects of social cues and brand imagery in cigarette advertising

Exposure to cigarette advertising can increase the likelihood of youth smoking initiation and may encourage people who already smoke to continue. Requiring prominent, graphic warning labels could reduce these effects. We test whether graphic versus text-only warning labels in cigarette advertisements influence cognitive and emotional factors associated with youth susceptibility to smoking and adult intentions to quit. We conducted two randomized, between-subjects experiments with middle-school youth (n = 474) and adult smokers (n = 451). Both studies employed a two (graphic or text-only warnings) by two (advertisements with social cues or brand imagery) factorial design with a fifth, offset control group (social cue advertisements with the current US Surgeon Generals Warning). Graphic warnings outperformed text-only warnings in reducing visual attention to the advertisement, generating visual attention to the warning and arousing more negative affect. Graphic warnings also reduced the appeal of cigarette brands among youth relative to social cue advertisements with the Surgeon Generals warnings. None of the warnings (graphic or textual) influenced health risk beliefs. Graphic warning labels on cigarette advertisements appear to have effects similar to those observed on cigarette packs in previous work, with an added benefit of reducing cigarette brand appeal among youth.

A Partial Defense of an Anti-Discrimination Principle

Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fisss landmark article appeared, Supreme Court doctrine has, at every turn, rejected his anti-subordination principle in favor of a narrower, more formalistic anti-discrimination principle. In the Courts view, the equal protection guarantee primarily targets discrimination against individuals on a small number of forbidden grounds. However, the anti-discrimination principle as such should not be taxed with the Courts adoption of equal protection hyper-formalism in the name of anti-discrimination. Both anti-discrimination and anti-subordination are sufficiently open-ended conceptions of equality to produce a variety of morally attractive and not-so-attractive outcomes.

On Reading the Constitution.

Introduction 1. How Not to Read the Constitution 2. Structuring Constitutional Conversations 3. Judicial Value Choice in the Definition of Rights 4. Seeking Guidance from other Disciplines: Law, Literature, and Mathematics 5. Reconstructing the Constitution as a Readers Guide Notes Index of Cases General Index