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.

The functioning of the U.S. government is a bit messier than Americans would like to think. The general understanding of policymaking has Congress making the laws, executive agencies implementing them, and the courts applying the laws as written—as long as those laws are constitutional. Making Policy, Making Law fundamentally challenges this conventional wisdom, arguing that no dominant institution—or even a roughly consistent pattern of relationships—exists among the various players in the federal policymaking process. Instead, at different times and under various conditions, all branches play roles not only in making public policy, but in enforcing and legitimizing it as well. This is the first text that looks in depth at this complex interplay of all three branches.

The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy.

Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.