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Monday, January 3, 2011

Doran: The Closed Rule

Tax Prof Michael Doran (Georgetown) has published The Closed Rule, 59 Emory L.J. 1363 (2010). Here is the abstract:

The closed rule constitutes a critical component of managerial power in the contemporary House of Representatives and an increasingly important element of the legislative process. Subject to approval by the full membership, the closed rule allows managers to block all amendments to a measure when bringing that measure to the floor. Despite objections from the minority, both Republicans and Democrats regularly use the closed rule when in the majority, and rank-and-file members ordinarily approve any closed rule put to a floor vote. Once rarely used, the closed rule has become managers’ preferred instrument for controlling the House floor agenda.

This Article presents the first comprehensive analysis of the closed rule in the legal literature. After situating the closed rule within its institutional and theoretical context, this Article examines the use of the closed rule by the Republican majority in the 109th Congress and the Democratic majority in the 110th Congress. The Article then undertakes both a positive and normative analysis. The positive analysis generalizes three prominent accounts of the closed rule from political theory and argues that the closed rule can more accurately be understood as a broadly managerial instrument for maintaining order on the House floor. The normative analysis identifies and discusses several undesirable effects of the closed rule—its tendency to increase legislative fragmentation and redundancy, its facilitation of third-party capture, and its weakening of bipartisan cooperation and compromise. But the normative analysis rejects claims that the closed rule is inherently undemocratic, arguing instead that the closed rule represents a deliberate, rational, and legitimate attempt by the rank and file to locate the House at the optimal point between too much managerial power and outright chaos on the floor.

http://taxprof.typepad.com/taxprof_blog/2011/01/doran-the.html

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