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El-Haj on Legal Regulation of Democratic Politics

By Lawrence Solum

Tabatha Abu El-Haj (The Earle Mack School of Law at Drexel University) has posted Changing the People: Legal Regulation and American Democracy (New York University Law Review, Vol. 86, 2011) on SSRN. Here is the abstract:

The world in which we live, a world in which law pervades the practice of democratic politics ? from advance regulation of public assemblies to detailed rules governing elections ? is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature?s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature?s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

Full post as published by Legal Theory Blog on September 06, 2010 (boomark / email).