Melissa Schwartzberg

Two leading scholars of democracy make the case for political bargaining and define its proper limits. Bargains—grand and prosaic—are a central fact of political life. The distribution of bargaining power affects the design of constitutions, the construction of party coalitions, legislative outcomes, judicial opinions, and much more. But can political bargaining be justified in theory? If it inevitably involves asymmetric power, is it anything more than the exercise of sublimated force, emerging from and reifying inequalities? In Democratic Deals, Melissa Schwartzberg and Jack Knight defend bargaining against those who champion deliberation or compromise, showing that, under the right conditions and constraints, it can secure political equality and protect fundamental interests. The challenge, then, is to ensure that these conditions prevail. Drawing a sustained analogy to the private law of contracts—in particular, its concepts of duress and unconscionability—the authors articulate a set of procedural and substantive constraints on the bargaining process and analyze the circumstances under which unequal bargaining power might be justified in a democratic context. Institutions, Schwartzberg and Knight argue, can facilitate gains from exchange while placing meaningful limits on the exercise of unequal power. Democratic Deals examines frameworks of just bargaining in a range of contexts—constitution-making and legislative politics, among judges and administrative agencies, across branches of government, and between the state and private actors in the course of plea deals. Bargaining is an ineradicable fact of political life. Schwartzberg and Knight show that it can also be essential for democracy.

A distinguished group of scholars explore the moral values and political consequences of privatization The 21st century has seen a proliferation of privatization across industries in the United States, from security and the military to public transportation and infrastructure. In shifting control from the state to private actors, do we weaken or strengthen structures of governance? Do state-owned enterprises promise to be more equal and fair than their privately-owned rivals? What role can accountability measures play in mediating the effects of privatization; and what role does coercion play in the state governance and control? In this latest installment from the NOMOS series, an interdisciplinary group of distinguished scholars in political science, law, and philosophy examine the moral and political consequences of transferring state-provided or state-owned goods and services to the private sector. The essays consider how we should evaluate the decision to privatize, both with respect to the quality of outcomes that might be produced, and in terms of the effects of privatization on the core values underlying democratic decision-making. Privatization also affects the structure of governance in a variety of important ways, and these essays evaluate the consequences of privatization on the state. Privatization sheds new light on these highly salient questions of contemporary political life and institutional design.

Supermajority rules govern many features of our lives in common: from the selection of textbooks for our children's schools to residential covenants, from the policy choices of state and federal legislatures to constitutional amendments. It is usually assumed that these rules are not only normatively unproblematic but necessary to achieve the goals of institutional stability, consensus, and minority protections. In this book, Melissa Schwartzberg challenges the logic underlying the use of supermajority rule as an alternative to majority decision making. She traces the hidden history of supermajority decision making, which originally emerged as an alternative to unanimous rule, and highlights the tensions in the contemporary use of supermajority rules as an alternative to majority rule. Although supermajority rules ostensibly aim to reduce the purported risks associated with majority decision making, they do so at the cost of introducing new liabilities associated with the biased judgments they generate and secure.

Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, Melissa Schwartzberg argues that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of 'entrenchment clauses' to protect key constitutional provisions from revision, Schwartzberg seeks to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political theory, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points.

Since ancient Athens, democrats have taken pride in their power and inclination to change their laws, yet they have also sought to counter this capacity by creating immutable laws. In Democracy and Legal Change, Melissa Schwartzberg argues that modifying law is a fundamental and attractive democratic activity. Against those who would defend the use of 'entrenchment clauses' to protect key constitutional provisions from revision, Schwartzberg seeks to demonstrate historically the strategic and even unjust purposes unamendable laws have typically served, and to highlight the regrettable consequences that entrenchment may have for democracies today. Drawing on historical evidence, classical political theory, and contemporary constitutional and democratic theory, Democracy and Legal Change reexamines the relationship between democracy and the rule of law from a new, and often surprising, set of vantage points.