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Abrams on the Oregon Initiative Process

By Lawrence Solum

Paula L. Abrams (Lewis & Clark Law School) has posted The Majority Will: A Case Study of Misinformation, Manipulation, and the Oregon Initiative Process (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract:

The controversy over the use of the initiative process to enact social policy began in the progressive era and remains heated today. Direct legislation eliminates the deliberative process of legislative and executive review, circumventing the checks and balances that define representative democracy. The absence of these checks and balances poses a high risk that voters will act on the basis of inaccurate or biased information. Appeals to voter prejudice can be a particularly potent and harmful strategy to agitate the majority against minority groups.

This article examines deception and discrimination in the initiative process by presenting a case study of one of the earliest and controversial initiatives, the Oregon School Bill. The School Bill mandated public education for all children, effectively destroying private, particularly Catholic, education. The challenge to Oregon?s compulsory public education law yielded a landmark U.S. Supreme Court decision, Pierce v. Society of Sisters. This article offers case-specific insight into how voters can be manipulated by misinformation and prejudice. It explores the tension between representative democracy and direct legislation, particularly how the initiative undermines the deliberative process. The article analyzes how voter ignorance, fear, and prejudice toward minority groups may taint the initiative process. Finally, the article examines legal solutions and recommends that the courts closely scrutinize direct legislation that harms historically disadvantaged groups.

Full post as published by Legal Theory Blog on July 16, 2009 (boomark / email).