Publication Date
6-1994
Journal
New York University Law Review
Abstract
The traditional model used by legal scholars to describe our system of representative democracy seeks to justify representation as a fulfillment of the self-rule ideal Many scholars, however, have argued that certain features of the modem legislative process undermine self-rule, and have proposed means by which judicial review can correct legislative failures and restore self-rule to primacy. Drawing on German philosopher Carl Schmitt's critique of parliamentary democracy in Weimar Germany, Professor Hamilton posits that scholarly attempts to reconcile self-rule with representative democracy are misguided. Representation based on self-rule will inevitably lead to interest-group politics, resulting in meaningless and endless debate and the inability of government to act decisively. Professor Hamilton reviews the major jurisprudential theories-process, public choice; and civic republican-and concludes that each fails to recognize the impossibility of reconciling selfrule and representation. In response she proposes replacing the self-rule model with an attorneyship model of representation. Building on the works of Framer James Wilson and ethicist David Luban, the author argues that the rights and obligations of representatives and their constituents should mirror those found in the attorney-client relationship. Under the proposed mode4 representatives have both the power and duty to exercise their independent judgment in making policy decisions, and a concomitant responsibility to maintain a vita two-way communication with their constituents. Framed in this manner, the attorneyship model of representation frees legislators from interest-group politics and permits them to act deliberatively and decisively, while still reserving ultimate authority with the people.
Volume
69
Issue
3
First Page
477
Last Page
562
Publisher
NYU School of Law
Keywords
Jurisprudence, Politics (General), Democracy, Political Systems and Governments, Minorities, Social Statistics, Representative Government, Ethics, Government (General)
Disciplines
Jurisprudence | Law
Recommended Citation
Marci A. Hamilton,
Discussion and Decisions: A Proposal to Replace the Myth of Self-Rule with an Attorneyship Model of Representation,
69
N.Y.U. L. Rev.
477
(1994).
https://larc.cardozo.yu.edu/faculty-articles/1068
