“Legislative Underwrites”

This paper on Leib and Brudney looks to be very good (forthcoming, Virginia Law Review):

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.

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