Category Archives: Uncategorized

“Saving Democracy from the Senate” Published

Published on dead trees at last! David B. Froomkin & A. Michael Froomkin, Saving Democracy from the Senate, 2024 Utah Law Review 397 (2024).

Here’s the abstract:

It should not be surprising that Americans say they are frustrated with their national institutions. Congress, particularly the Senate, responds poorly to the public’s needs and wants because it is increasingly unrepresentative of the electorate. Reform is difficult, however, because each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several of these approaches circumvent the restriction imposed by the Entrenchment Clause by reforming the Senate in ways that do not alter the equal representation of states: disempowering the Senate, abolishing the Senate entirely, or adding at-large nationally elected senators. A different approach involves repealing the Entrenchment Clause and then either passing a second amendment reapportioning the Senate or asking courts to democratize it under the Equal Protection Clause. We then canvass reforms that could move in the direction of democratizing the Senate without constitutional amendment, including admitting new states, breaking up the largest states, and (although we do not advocate it) a new Constitutional Convention. Throughout, we discuss the relative merits and difficulties of each of these options. Reformers and scholars need a clear understanding of the relevant legal frameworks to develop effective strategies. While we recognize that none of these options are easy, we conclude that action to fix the Senate’s democratic deficit is essential— and urgent.


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Dates that will live in Infamy

President Franklin D. Roosevelt described December 7, 1941 as “a date which will live in infamy” in his speech the day after the Japanese attack on Pearl Harbor. 12/7 was a date seared into the memory of those who lived through it, although I think not nearly as meaningful to those who like me were born considerably later. Even infamy may have a half-life, and I suspect that today most people look at ‘Pearl Harbor Day’ on the calendar and don’t think that much of it.

We of the current generations have two dates of our own that live in infamy at least for now: 9/11 and 1/6. What these dates have in common with 12/7 is that they all represent thankfully rare dates on which the United States was attacked. But 1/6 isn’t quite like the others. The attack was from within not from a foreign power. And the evocative power of that date seems less universal, as some have taken to downplaying the significance of the sacking of the Capitol, and of the attempt to set aside the results of the Presidential election.

The January 6 Commission Report sought to nail down the history and to protect the popular memory, and the polity, from they-were-just-tourist revisionists and Big Lie conspiracists. In this, the Committee members were only partly successful, although the (multiple) juries are not just still out, but not even empaneled, as the Trump legal team tries to delay a formal reckoning of his and his associates’ conduct.

Here’s hoping the evocative power of those dates will fade with time in a normal, healthy way rather than being erased by lies or enshrined as the beginning of the end of the ‘American experiment’.1

  1. I was surprised to learn the this phrase, commonly attributed to Democracy in America, does not appear in the French original, but is apparently an invention of Tocqueville’s first English translator Henry Reeve. []
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Happy Halloween!

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Celebrating Jotwell’s 13th Birthday

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Reposted from

Today is Jotwell’s 13th birthday. (Yes, it’s hard to believe, but check the Archives.) We’ll be celebrating this event for the next fortnight by running two posts a day. The second post will run weekdays in the mid-afternoon, around 3pm U.S. East Coast time.

We’ll also be celebrating by having a quiet fund-raiser. Visitors to the site will see a red banner at the bottom of the page about the double-posting, and inviting reader donations. Alas, people who get Jotwell via the RSS feed or by email will be denied that experience, although they will get any extra posts in the sections they signed up for. But there is no reason for the hundreds of people who read us via the RSS feed–or by email–to be left out.

So here’s the pitch: However you read Jotwell, please will you make a small donation to support this journal? All the faculty who write for and edit Jotwell do so for free, but even so, producing the journal is not costless: we need to pay for our server, for our student editors, and for various types of technical and design support, including keeping up with a procession of software updates. This adds up.

We don’t charge for Jotwell and we don’t run any ads, and we would like to keep it that way. If every Jotwell reader donated just $10 a year, we’d cover all of our costs…but alas not everyone is generous.

If you can afford it, please don’t be a free rider. If you like us lots–or even just some–please make a small donation? Of course, if you want to make a large one we would not say no to that either.

In any case, we thank you for reading, and look forward to another year in which we celebrate the best recent scholarship relevant to the law.

Yours sincerely,

A. Michael Froomkin
Jotwell Editor-in-Chief

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Giant Study Finds Vaccine Much Safer than No Vaccine

Largest real-world study of COVID-19 vaccine safety published. They compared “884,828 vaccinated individuals aged 16 and over [who] were carefully matched with 884,828 unvaccinated individuals based on an extensive set of sociodemographic, geographic and health-related attributes.”

This study focused on adverse events that may develop in the short to medium term after vaccination, and those with clinical significance. The study did not focus on common immediate symptoms such as redness and discomfort at the injection site or fever. Symptoms that occurred within 6 weeks of the vaccine (three weeks after each vaccine dose) were defined as an adverse event of the vaccine if they occurred more frequently among the vaccinated group compared to the control group.

The results were clear:

The vaccine was found to be safe: Out of 25 potential side effects examined, 4 were found to have a strong association with the vaccine.

Myocarditis was found to be associated with the vaccine, but rarely—2.7 excess cases per 100,000 vaccinated individuals. (The myocarditis events observed after vaccination were concentrated in males between 20 and 34.) In contrast, coronavirus infection in unvaccinated individuals was associated with 11 excess cases of myocarditis per 100,000 infected individuals.

Other adverse events moderately associated with vaccination were swelling of the lymph nodes, a mild side effect that is part of a standard immune response to vaccination, with 78 excess cases per 100,000, appendicitis with 5 excess cases per 100,000 (potentially as a result of swelling of lymph nodes around the appendix), and herpes zoster with 16 excess cases per 100,000.

In contrast to the relatively small number of adverse effects associated with the vaccine, high rates of multiple serious adverse events were associated with coronavirus infection among unvaccinated patients, including: Cardiac arrhythmias (a 3.8-fold increase to an increase of 166 cases per 100,000 infected patients), kidney damage (14.8-fold increase; 125 excess cases per 100,000), pericarditis (5.4-fold increase; 11 excess cases per 100,000), pulmonary embolism (12.1-fold increase; 62 excess cases per 100,000), deep vein thrombosis (3.8-fold increase; 43 excess cases per 100,000), myocardial infarction (4.5-fold increase; 25 excess cases per 100,000), and stroke (2.1-fold increase; 14 excess cases per 100,000).

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Fixing the Senate: A User’s Guide

New draft at SSRN, co-authored with David Froomkin who happens to be my son and is a J.D./Ph.D (political theory) candidate at Yale. It’s called Fixing the Senate: A User’s Guide, and here’s the abstract:

The Senate is the most undemocratic part of the U.S. Constitution – worse even than the Electoral College, although the two are related, and some versions of fixing the Senate would ameliorate the Electoral College also. Unfortunately, each state’s ‘equal Suffrage’ in the Senate is protected by a unique Constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We argue first that the constitutional proscription on abolishing the Senate has been overstated, but that in any case there are constitutional reform proposals that range from abolishing the Senate to various degrees of disempowering it. We then argue that there are several promising reforms that could move in the direction of democratizing the Senate without constitutional amendment. In particular: admitting new states, breaking up the largest states, and a new Constitutional Convention. This paper canvases benefits, costs, effectiveness, and likely feasibility of each of these methods by which one might seek to make the Senate more representative despite the entrenchment clause. Several of the proposals create an opportunity for Supreme Court review and perhaps obstruction, raising questions about the relationship between Senate reform and Supreme Court reform.

Shout-out to Larry Solumn for giving it the “highly recommended” seal of approval.

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