Ellen D. Katz

Bio: Ellen D. Katz is an academic researcher from University of Michigan. The author has contributed to research in topics: Voting & Supreme court. The author has an hindex of 5, co-authored 29 publications receiving 86 citations.

Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982

Abstract: This paper examines 331 lawsuits, encompassing 763 decisions, that addressed claims under Section 2 of the Voting Rights Act since 1982. It finds that plaintiffs succeeded in 37% of these lawsuits, and that they were more likely to prevail in regions subject to the temporary provisions of the VRA (known as Section 5 or pre-clearance) than elsewhere. This study also documents the types of electoral practices challenged in Section 2 cases, and the extent to which courts hearing these cases documented any of the factors listed as probative in the Senate Report accompanying the 1982 amendments to Section 2 and those described by the Supreme Court in Thornburg v. Gingles.

Reinforcing Representation: Congressional Power to Enforce the Fourteenth and Fifteenth Amendments in the Rehnquist and Waite Courts'

Abstract: This Article is a response to scholarship that accused the Rehnquist Court of "undoing the Second Reconstruction," much like the Waite Court has long been credited with ending the first. The Article argues that a parallel does indeed exist between the Rehnquist Court's response to the Second Reconstruction and the Waite Court's reaction to the first. It maintains, however, that decisions by both Courts respond to Reconstruction not with undifferentiated hostility, but instead in a more complex manner. These decisions posit a two-tiered vision of Congress' enforcement powers under the Reconstruction-Era Amendments, under which Congress possesses broad discretion to free state political processes of racial discrimination, but is accorded far more limited authority to combat other forms of discrimination at the state and local level. This disaggregation of Congress's enforcement powers reflects the view that individual liberty is best protected at the state level, but only so long as effective, representative governance is maintained. Racial discrimination affecting voting prevents States from fulfilling their obligation to protect individual liberty. Decisions by both Courts accord deference to congressional efforts to block such discrimination and thereby to reinforce representative governance at the state level. The Article argues that they countenance this broad congressional power in order to preserve the primacy of state authority elsewhere.

Enforcing the Fifteenth Amendment

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A Cure Worse than the Disease

Abstract: The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. This short essay examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

Institutions and Economic Growth in Historical Perspective

Abstract: This chapter surveys the historical evidence on the role of institutions in economic growth and points out weaknesses in a number of stylized facts widely accepted in the growth literature. It shows that private-order institutions have not historically substituted for public-order ones in enabling markets to function; that parliaments representing wealth holders have not invariably been favorable for growth; and that the Glorious Revolution of 1688 in England did not mark the sudden emergence of either secure property rights or economic growth. Economic history has been used to support both the centrality and the irrelevance of secure property rights to growth, but the reason for this is conceptual vagueness. Secure property rights require much more careful analysis, distinguishing between rights of ownership, use, and transfer, and between generalized and particularized variants. Similar careful analysis would, we argue, clarify the growth effects of other institutions, including contract-enforcement mechanisms, guilds, communities, serfdom, and the family. Greater precision concerning institutional effects on growth can be achieved by developing sharper criteria of application for conventional institutional labels, endowing institutions with a scale of intensity or degree, and recognizing that the effects of each institution depend on its relationship with other components of the wider institutional system.

Evaluating the Role of Brown vs. Board of Education in School Equalization, Desegregation, and the Income of African Americans

Abstract: In this paper we study the long-term labor market implications of school resource equalization before Brown and school desegregation after Brown. For cohorts born in the South in the 1920s and 1930s, we find that racial disparities in measurable school characteristics had a substantial influence on black males' earnings and educational attainment measured in 1970, albeit one that was smaller in the later cohorts. When we examine the income of male workers in 1990, we find that southern-born blacks who finished their schooling just before effective desegregation occurred in the South fared poorly compared to southern-born blacks who followed behind them in school by just a few years.

Ruling the World?: Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States

Abstract: In the debates about whether to take constitutionalism beyond the state, the European Union invariably looms large. One element, in particular, that invites scholars to grapple with the analogy between the European Union and global governance is the idea of legal pluralism. Just as the European legal order is based on competing claims of ultimate legal authority among the European Union and its Member States, so, too, the global legal order, to the extent we can speak of one, lacks a singular, uncontested hierarchy among its various parts. Scholars have accordingly begun to consider pluralism within the European Union as a model from which to glean more general principles that may be applicable to pluralism and constitutionalism elsewhere. If we can find constitutionalism within the pluralist system of the European Union, so the argument goes, perhaps we can find constitutionalism within the international legal system as well.This paper takes a fresh look at constitutionalism and pluralism by bringing heterarchy home. In so doing, it explores a comparison that has been uniformly overlooked in the scholarly literature. This chapter examines the similarities between the pluralism that lies at the core of European constitutionalism and aspects of pluralism in U.S. constitutional practice. With regard to these two systems, the chapter makes three claims. First, in both systems important questions of final legal authority remain essentially unsettled. Second, in both systems, this absence of hierarchy of legal authority does not lead to chaos, but constitutes a system of order. Third, the management of constitutional conflict and the resulting accommodation turn on what I claim are the three primary values of constitutionalism: voice, expertise, and rights. Reaching beyond these two systems, the comparative inquiry pursued here helps answer what may be the most pressing question for those who seek to understand global governance in the language of constitutionalism. The comparison reveals that constitutionalism does not depend on traditional hierarchy among systems or interpretive institutions. Instead, constitutionalism can be realized within a system of heterarchy. Constitutionalism stands for a project of governance in which actors endeavor to realize the primary values of voice, expertise, and rights. And it is these three values that the idea of constitutionalism, if taken seriously, aims to vindicate at the level of global governance as well.

Institutions and Economic Growth in Historical Perspective: Part 2

Abstract: This is Part 2 of a two-part paper which surveys the historical evidence on the role of institutions in economic growth. The paper provides a critical scrutiny of a number of stylized facts widely accepted in the growth literature. It shows that private-order institutions have not historically substituted for public-order ones in enabling markets to function; that parliaments representing wealth holders have not invariably been favourable for growth; and that the Glorious Revolution of 1688 did not mark the sudden emergence of either secure property rights or economic growth. Economic history has been used to support both the centrality and the irrelevance of secure property rights to growth, but the reason for this is conceptual vagueness. Secure property rights require much more careful analysis, distinguishing between rights of ownership, use and transfer, and between generalized and particularized variants. Similar careful analysis would, we argue, clarify the growth effects of other institutions, including contract-enforcement mechanisms, guilds, communities, serfdom, and the family. Greater precision concerning institutional effects on growth can be achieved by developing sharper criteria of application for conventional institutional labels, endowing institutions with a scale of intensity or degree, and recognizing that the effects of each institution depend on its relationship with other components of the wider institutional system. Part 2 of the paper examines how institutions are situated in wider institutional systems, explores alternative approaches to explaining institutions, and applies the arguments established in earlier sections to the institution of serfdom. It concludes by drawing the implications of both parts of the paper for institutions and economic growth in historical perspective.

Evaluating the Role of Brown vs. Board of Education in School Equalization, Desegregation, and the Income of African Americans

Abstract: In this paper we study the long-term labor market implications of school resource equalization before Brown and school desegregation after Brown. For cohorts born in the South in the 1920s and 1930s, we find that racial disparities in measurable school characteristics had a substantial influence on black males' earnings and educational attainment measured in 1970, albeit one that was smaller in the later cohorts. When we examine the income of male workers in 1990, we find that southern-born blacks who finished their schooling just before effective desegregation occurred in the South fared poorly compared to southern-born blacks who followed behind them in school by just a few years.