Ryan Doerfler (Harvard Law School) & Samuel Moyn (Yale University) have posted After Courts: Democratizing Statutory Law (Michigan Law Review, Forthcoming) on SSRN. 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.
And from the text:
We can distinguish between two different modes of disempowerment through allocation or reallocation elsewhere. First, Congress has set up alternative venues for statutory control. Second, Congress has protected those venues from court interference, whether by stripping jurisdiction over interpretation of the statute altogether or obviating any secondguessing of agency interpretation of its provisions. As before, these full scale allocation mechanisms can be presented as escalating techniques. One tactic is to secure first impression interpretation of statute within the political branches by creating alternative venues. Another is to protect first-impression interpretation of statute from judicial reinterpretation.
Congress has created various Article I and II venues of statutory interpretation policymaking. In turn these have come in two forms: freestanding specification through administrative rule-making, and adjudicative processes located outside the Article III judiciary (or in special courts within it). Article I legislative courts have generally though not unerringly interpreted statute through case-by-case adjudication. Article II agencies, by contrast, famously regulate by initial rule-making processes, which agencies then enforce, often settling disputes through their own adjudicative corps.
I am traveling today, Please forgive me for not extracting all of the very interesting strategies for disempowering and replacing courts that are discussed in the article. This is an important article that anyone interested in the separation of powers, statutory interpretation, administrative law, and regulatory law will want to read. Highly recommended. Download it while it's hot!