>From Rick's news and commentary:
 
Glen Staszewski has posted on SSRN The Bait and Switch in Direct Democracy <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896296>  (Wisconsin Law Review). Here is the abstract:


	This Article provides a case study of the bait-and-switch in direct democracy based on a ballot initiative that recently amended the Michigan Constitution to prohibit the legal recognition of same-sex marriage or similar union for any purpose. The bait-and-switch in direct democracy occurs when initiative proponents (1) qualify a particularly popular idea for the ballot; (2) draft the measure in sufficiently broad or ambiguous terms to create collateral consequences; (3) either evade questions about those collateral consequences during the election campaign or flatly deny that they were intended; and (4) establish the collateral consequences through litigation or by lobbying executive officials who are responsible for implementing the measure. The Article claims that structural flaws in the initiative process facilitate this technique and otherwise increase the risk that successful ballot measures will have collateral consequences that were not approved by the voters. The A!
 rticle evaluates the ability to alleviate these problems through existing procedural safeguards or the adoption of interpretive techniques that narrowly construe ambiguous ballot measures to minimize collateral damage. While endorsing the latter solution, the Article contends that these problems could be attacked more directly by the adoption of structural reforms that have proven effective in other contexts. Finally, the Article explains that the shortcomings of candidate elections and the ordinary legislative process do not undermine the rationale for reform proposals of this nature because the ballot initiative process has a distinct capacity to combine passionate voting (by the electorate) and instrumental lawmaking (by initiative proponents and others) in a way that is especially prone toward divergence (based on inadequate structural safeguards). The bait-and-switch in direct democracy is so troubling because it capitalizes on precisely this state of affairs. 

	Perhaps Mr. Staszewski makes his case in the article, but the bait in his abstract is hard to swallow.  To take a couple of well-known cases of statutory interpretation, in the Allen case, Justice Harlan takes Chief Justice Warren's contention that Congress intended the Voting Rights Act to extend to representational systems (e.g., redistricting) to the cleaners.  In Weber, the Court acted contrary to statutory language and legislative history, both about as clear as they ever can be, to allow affirmative action programs in labor apprenticeship programs.  As Justice Blackmun's concurring opinion candidly acknowledges, they did this because previous Court decisions had put considerable pressure on employers to engage in the activity that the statutory language and legislative history prohibited.

	It is a fair guess that the great majority of subscribers to these lists not only accept the outcomes of the Allen and Weber decisions but heartily applaud them.  If such shenanigans are the subject of celebration when the Court is interpreting legislatively enacted statutes, why should they be condemned when (and also a large if) courts interpret initiatives in a similar manner?