Academic

Gerken on Concurring by Nondecision

By Lawrence Solum

Heather Gerken (Yale University - Law School) has posted Concurring by Nondecision on SSRN. Here is the abstract:

In prior work, I have argued that radical dissent can be expressed through decision: dissenters can act radically. For example, when San Francisco spent several weeks marrying gay and lesbian couples, dissent was expressed through direct action. This article examines the flip side of dissent through decision, concurrence can be expressed through inaction.

Concurring by nondecision occurs when political or judicial actors express their agreement with a decision by inaction, that is by failing to make active decisions. This phenomenon is mostly unnoticed because of the unstated but pervasive assumption that concurrence must be expressed through an active decision, e.g., by a judge voting with the majority or a legislature voting for a bill. This assumption is incorrect as is demonstrated by consideration of concurring by nondecision in a variety of contexts. For example, Presidents can allow a bill to become law by inaction while Congress is in session: his nondecision effectively becomes concurrence. Likewise, a member of a legislative body can effectively support a bill that garners a majority of votes simply by failing to vote one way or another. On a larger scale, citizens can indicate their support for the politices of the ruling coalition or current regime by failing to say or do anything, becoming a "silent majority."

Concurring by not deciding, then, should be understood as an alternative strategy for institutionalizing channels for concurrence within the democratic process. But because concurrence has not been conceptualized in these terms, scholars have not given adequate thought to which form of concurrence is preferable, and when. This paper takes a first step in that direction. The payoff for thinking about concurrence in the terms proposed here is a more comprehensive set of categories for thinking about how best to institutionalize it.

Highly recommended.

Full post as published by Legal Theory Blog on April 01, 2011 (boomark / email).