Notice & Comment

Ad Law Reading Room: “After Courts: Democratizing Statutory Law,” by Ryan D. Doerfler & Samuel Moyn

Today’s Ad Law Reading Room entry is “After Courts: Democratizing Statutory Law,” by Ryan D. Doerfler & Samuel Moyn, which is forthcoming in the Michigan Law Review. Here is the abstract:

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent massive power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every Term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rule-making and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article completes our proposal to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but in the long term, a fuller rethinking our desirable institutional plan of legal interpretation beckons. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.

“After Courts” starts with the argument, which one needn’t be a radical to accept, that statutory interpretation and policymaking often cannot be cleanly separated. And yet judges, whom we entrust to do “interpretation,” are not the actors we want to do policy. What to do about that? The traditional strategy involves crafting doctrine with an eye toward keeping judges in their lane and empowering more democratically accountable officials to do the real lawmaking. For the administrative law crowd, Chevron is undoubtedly the most famous example of such a strategy.

As Doerfler and Moyn point out, however, the doctrinal route relies on judicial self-policing, which, to put it mildly, may not always be forthcoming. The heart of the article, and its biggest contribution, involves exploring a diverse set of reforms designed to disempower Article III courts as an institutional matter, reducing their power over statutory interpretation or getting them out of the game completely. None is presented as a perfect solution, but each is revealed to be worthy of serious debate. Ad Law Reading Room is a little late to “After Courts,” which has been plugged elsewhere. But if you haven’t yet put eyes on it, I’d urge you to do so.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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