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ABSTRACT
This article examines how imperfect legislative agreements offer an opportunity for higher courts’ intervention in policymaking. In concrete terms, it explains that lawmakers in certain situations avoid resolving apparent conflicts of interest due to high transaction costs in the legislative process, maintaining statutory criteria considered transparently inefficient or by simply developing regulatory arrangements with a significant degree of indeterminacy. Employing a simplified model of rational choice behaviour, the article asserts that those scenarios constitute an opportunity for strategic involvement of the higher courts in crafting public policy. As an unintended consequence of the imperfect legislative agreements, justices look at them as an indicator that members of the other branches of government have reached weak political compromises or are unable to impose their policy preferences. Therefore, justices can exercise discretion, foreseeing prospects to increase their authority while the risk of an overruling or the implementation of other retaliatory measures remains low.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 C. N. Tate and T. Vallinder (eds.), The Global Expansion of Judicial Power (New York University Press 1997). M. Shapiro and A. Stone Sweet. On Law, Politics and Judicialization (OUP 2002). Ran Hirsh, ‘The Judicialization of Politics’ in G. A. Caldeira, D. Kelemen and K. E. Whittington (eds), The Oxford Handbook of Law and Politics (Oxford University Press 2008) 119–41.
2 J. Ferejohn, ‘Judicializing Politics, Politicizing Law’ (2002) 65 Law and Contemporary Problems 41.
3 M. Ramseyer, ‘The Puzzling (In)dependence of Courts: A Comparative Approach’ (1994) 23 The Journal of Legal Studies 721–47. R. Cooter, T. Ginsburg, ‘Comparing Judicial Discretion: An Empirical Test of Economic Models’ (1996) 16 International Review of Law and Economics 295.
4 R. Dahl, ‘Decision Making in a Democracy: The Supreme Court as a National Policy-Maker’ (1957) 6 Journal of Public Law 279. M. M. Feeley and E. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons (Cambridge University Press 1998).
5 G. Helmke, ‘The logic of strategic defection: Court–executive relations in Argentina under dictatorship and democracy’ (2002) 96(2) American Political Science Review, 291–303.
6 C. Sunstein, ‘Incompletely Theorized Agreements Commentary’ (1994) 108 Harv L Rev 1733. Andrei Marmor, The Language of Law (Oxford University Press 2014) 85–105.
7 E.g., J. Ferejohn and B. Weingast, ‘A Positive Theory of Statutory Interpretation’ (1991) 12 International Review of Law and Economics 263–79. M. C. Stephenson, ‘Legal Realism for Economists’ (2009) 23 Journal of Economic Perspectives 191. M. D. McCubbins and D. Rodriguez, ‘The Judiciary and the Role of Law: A Positive Political Theory Perspective’ in B. Weingast and D. Wittman (eds.), The Oxford Handbook on Political Economy (Oxford University Press 2006) 273–87.
8 R. Kagan, Adversarial Legalism. The American Way of Law (Harvard University Press 2019) 41–71.
9 N. Maveety, ‘The Study of Judicial Behavior and the Discipline of Political Science’ in N. Maveety (ed.), The Pioneers of Judicial Behavior (Michigan University Press 2003) 18–19.
10 S. A. Lindquist and F. B. Cross, ‘Empirically Testing Dworkin’s Chain Novel Theory: Studying the Path of Precedent’ (2005) 80 New York University Law Review 1156.
11 Ginsburg and Cooter (n 3)
12 E.g., Ch. R. Epp, The Rights Revolution. Lawyers, Activists, and Supreme Courts in Comparative Perspective (The University of Chicago Press 1998).
13 B. Friedman, ‘Taking Law Seriously’ (2006) 4(2) Perspectives in Politics 261–76.
14 J. A. Segal and H. J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002) 97–108.
15 M. McCubbins, R. Noll and B. Weingast, ‘Positive Canons: The Role of Legislative Bargains in Statutory Interpretation’ (1992) 80 Georgetown Law Journal 705. P. T. Spiller and M. L. Spitzer, ‘Judicial Choice of Legal Doctrines’ (1992) 8 Journal of Law, Economics and Organization 8. F. B. Cross, ‘The Significance of Statutory Interpretive Methodologies’ (2007) 82 Notre Dame Law Review 1971.
16 Segal and Spaeth (n 14) 106–07.
17 As a matter of fact, robust moral and legal literature addresses disagreements within the frameworks of a pluralistic society and the search for appropriate institutional mechanisms to handle them. J. Rawls, Political Liberalism (Columbia University Press 2005). A. Gutmann, D. F. Thomson, Democracy and Disagreement (Harvard University Press 1998). S. Besson, The Morality of Conflict: Reasonable Disagreement and the Law (Hart 2005). However, even those oeuvres more closely devoted to examining disagreements in legislative deliberation exclude the analysis of how dormant legislative disagreements contained in enacted statutory norms impact the political process. E.g., J. Waldron, Law and Disagreement (Oxford University Press 1999).
18 O. E. Williamson, ‘Transaction-Cost Economics: The Governance of Contractual Relations’ (1979) 22 The Journal of Law & Economics 233.
19 J. Waldron (n 17) 38–45.
20 J. J. Rousseau, The Social Contract. In Jean Jacques Rousseau, The Social Contract and the First and Second Discourses. (Yale University Press 2002) 170–73.
21 J. Locke, The Second Treatise on Civil Government (Cambridge University Press 1988) II, §212.
22 For example, they are the primary focus of the literature following Condorcet´s jury theorem that points out how collective decision-making increases the probability of a correct rational decision emerging from a pair of alternatives in comparison to individual choices in similar conditions. J. Elster, Explaining Social Behavior. More Nuts and Bolts for Social Sciences (Cambridge University Press 2015) 408.
23 J. Waldron (n 17) 43–44.
24 See, for instance, Eskridge’s approach, which affirms that the judge sometimes acts as a diplomat who must adapt the instructions of his principal to face new circumstances. W. Eskridge, Dynamic Statutory Interpretation. (Harvard University Press 1994).
25 Such legal fiction sketched legislation as a consistent statutory system, allowing judges to fill regulatory gaps by devising creative, interpretive adaptations without relinquishing their adherence to the separation of powers doctrine. L. J. Wintgens, The Rational Legislator Revisited. Bounded Rationality and Legisprudence. In Luc J. Wintgens and A. D. Oliver-Lalan (eds.), The Rationality and Justification of Legislation: Essays in Legisprudence (Springer 2013) 1–31.
26 For example, in a modern version of that approach, Richard Ekins observes that members of legislatures usually act jointly through interlocking intentions, collectively choosing to change the law. This intent is possible because legislative assemblies have the institutional capacity to establish fine-tuned procedures that use conventional language to enact proposals that, on most occasions, are given a common meaning. R. Ekins, The Nature of Legislative Intent (Oxford University Press 2016).
27 Some theoretical rebuttals address the emergence of a unique legislative intent from the mere aggregation of votes. For example, Waldron proposes that the best model to represent lawmaking in democratic assemblies is that of a voting machine, which adds votes onto the statutory text, not motivations or reasons. J. Waldron (n 17) 124–29.
28 On a jurisprudential typology on adjudication and its limits within lawmaking, see D. Kennedy. A Critique of Adjudication. Fin de siècle (Harvard University Press 1997) 23–38.
29 E.g., J. W. Singer, ‘The Player and the Cards: Nihilism and Legal Theory’ (1984) 94 Yale Law Journal 9.
30 C. Sunstein (n 6).
31 M. A. Graber, ‘The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary’ (1993) 7 Studies in American Political Development 36. George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge University Press 2010).
32 O. E. Williamson (n 18).
33 B. Harstad, ‘Political Treaties as Incomplete Contracts’ in P. Aghion et al. (eds.), The Impact of Incomplete Contracts in Economy (Oxford University Press 2016) 321–31.
34 J. M. Buchanan and G. Tullock, The Calculus of Consent (Michigan University Press 1962). D. C. North, ‘A Transaction Cost Theory of Politics’ (1990) 2 Journal of Theoretical Politics 355. D. Epstein, S. O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making under Separate Powers (Cambridge University Press 1999) 43–47.
35 W. Landes and R. A. Posner, ‘The Independent Judiciary in an Interest-Group Perspective’ (1975) 18 Journal of Law and Economics 879. K. A. Shepsle, ‘Congress is a “They,” Not an “It”: Legislative Intent as Oxymoron’ (1992) 12 International Review of Law and Economics 250–54.
36 G. K. Hadfield, ‘Incomplete Contracts and Statutes’ (1992) 12 International Review of Law and Economics 257–59.
37 G. Zagrebelsky, Il diritto mite: legge, diritti, giustizia (Einaudi 1992) 45.
38 For the debates on the definition of public policy as a matter of scientific inquiry, starting from Harold D. Laswell´s works in the 1950s, see P. Deleon, ‘The Historical Roots of the Field’ in M. Moran, M. Rein, and R. E. Goodin (eds.). The Oxford Handbook of Public Policy (Oxford University Press 2006) 39–57.
39 M. Derthick and P. J. Quirk, The Politics of Deregulation (Brookings Institution Press 1985).
40 R. Posner. The Evolution of Economic Thinking about Legislation and its Interpretation by Courts. In L. C. Wintgens. The Theory and Practice of Legislation. Essays in Legisprudence (Routledge 2005) 53–64.
41 Following a classical approach conventionally accepted in the mainstream of public policy analysis, I am addressing all the activities operating after the general lawmaking process, aiming for applying regulation and accomplishing the policy goals. D. S. Van Meter and C. E. Van Horn, ‘The Policy Implementation Process: A Conceptual Framework’ (1975) 6 Administration & Society 6445.
42 While describing the legitimacy of a weak form of judicial review, Rosalind Dixon presents a superb synthesis of the political dynamics leading to blockages in the legislative process, which are relevant in this regard. R. Dixon, ‘The Core Case for Weak-Form Judicial Review’ (2017) 38 Cardozo Law Review 2193 at 2208–2213.
43 Although there is much extended debate concerning the clarification of the term ‘transaction costs,’ after the words of Coase and Williamson, literature tends to delimitate this term, addressing the close association between bargaining and the value of the assets in play. D. W. Allen, ‘What Are Transaction Costs?’ (1991) 14 Research in Law and Economics 1.
44 W. M. Landes, R. Posner and B. Weingast, ‘The Independent Judiciary in an Interest-Group Perspective’ (1975) 18 The Journal of Law and Economics 875. W. Marshall, ‘The Industrial Organization of Congress; or, Why Legislatures, Like Firms, are Not Organized as Markets’ (1988) 96 Journal of Political Economy 132.
45 According to Edward Rubin, the drawbacks of legislation would be related to the legislature’s inability to manage conflict in a systematic way, structuring lawmaking as a chaotic procedural political activity that incrementally modifies bill proposals. As an alternative, he sustains reframing statutory drafting as a problem-solving debate grounded in rational planning since its beginning. ‘Statutory Design as Policy Analysis’ (2018) 55 Harvard Journal on Legislation 14.
46 Indeed, regulatory effectiveness will depend upon several exogenous factors that determine policy impact, such as symbolic perceptions among the population. A critical aspect to accomplish policy goals is the proper application of the regulatory framework. In this light, it is expected that lawmakers draft statutes explicitly considering all the factors intervening in their enforcement. M. Mousmouti, Designing Effective Legislation (Edward Elgar 2019) 154.
47 Many times, the policy’s very features and the framing of the interests in policymaking regarding the distribution of costs and benefits determine the political process. W. N. Eskridge, Jr, ‘Politics without Romance: Implications of Public Choice Theory for Statutory Interpretation.’ (1988) 74 Virginia Law Review 275.
48 We can find an alternative model for conceptualizing some forms of untypical lawmaking in A Gluck, AJ O’Connell and R. Po, ‘Unorthodox Lawmaking, Unorthodox Rulemaking,’ (2015) 115 Columbia Law Review 1789.
49 Van Meter and Van Horn (n 42).
50 Conventional wisdom asserts that agenda-setting powers and partisan support allow the executive branch’s ability and legislative partisan coalitions to impose their policy preferences. Nevertheless, there are nuanced debates incorporating other critical factors as well, such as the Executive’s ability to influence legislators´ behaviour by means of informal sanctions and vote ‘buying.’ S. M. Saiegh, ‘Lawmaking’ in S. Martin, T. Saalfeld, K. W. Strøm (eds.), The Oxford Handbook of Legislative Studies (Oxford University Press 2014) 481–513.
51 W. Howell, Power without Persuasion: The Politics of Direct Presidential Action (Princeton University Press 2003). For analysis of this aspect in some Latin American developing countries, see V. Palanza, Checking Presidential Power. Executive Decrees and the Legislative Process in New Democracies (Cambridge University Press 2019).
52 Buchanan and Tullock (n 34) 145.
53 This activity has become a critical part of the contemporary political process as long as legislative activity has shifted from policy resolution to empowering administrative bodies that develop public policy after statutory enactment. E. L. Rubin, ‘Law and Legislation in the Administrative State’ (1989) 89 Columbia Law Review 369.
54 Regarding delegation to administrative agencies, robust theoretical analysis developed through game theory asserts that the legislative and executive interplay in the process of appointment, and potential sanctions exert determinant influence on agencies’ outputs. R. Calvert, M. D. McCubbins, B. Weingast, ‘A Theory of Political Control and Agency Discretion’ (1989) 33 American Journal of Political Science 588. For a comparative analysis of the external factors leading legislatures to delegate policymaking in administrative agencies, see J. Huber, C. R. Shipan, Deliberate Discretion? The Institutional Foundations of Bureaucratic Autonomy (Cambridge University Press 2002).
55 Epstein and O'Halloran (n 34) 232.
56 D. Lanius, Strategic Indeterminacy in the Law (Oxford University Press 2019) 216–19.
57 B. Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press 2007) 73–79.
58 A. Marmor (n 6) 28–34. W. van der Burg, ‘Essentially Ambiguous Concepts and the Fuller-Hart-Dworkin Debate’ (2009) 95(3) Archiv für Rechts-und Sozialphilosophie 305.
59 L. Solum, ‘Indeterminacy’ in D. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Wiley-Blackwell 2010) 480–81.
60 Linguistic analysis is used to distinguish between different forms of semantic indeterminacy, like vagueness, which refers to the lack of accuracy, and ambiguity, which offers several possible meanings. A. Marmor (n 6) 85–92. To avoid an unnecessary detour from the article’s hypothesis, this work does not delve into such an inquiry and treats vagueness and ambiguity as synonyms.
61 D. Lanius (n 57) 216–83.
62 There is an extended consensus that broader statutory language facilitates legislative compromise. E. H. Levi, Introduction to Legal Reasoning (The University of Chicago Press 1949) 31. See V. Nourse. Misreading Law, Misreading Democracy (Harvard University Press 2016) 14–33.
63 R. Poscher, ‘An Intentionalist Account of Vagueness: A Legal Perspective’ in G. Keil and R. Poscher (eds.), Vagueness and Law: Philosophical and Legal Perspectives (Oxford University Press 2016) 65–94.
64 K. Pistor, Ch. Xu, ‘Incomplete Law’ (2003) 35 New York University Journal of International Law and Policy 931, at 941.
65 P. Westerman, Outsourcing the Law: A Philosophical Perspective on Regulation (Edward Elgar 2018).
66 W. Witteveen and B. van Klink, ‘Why is soft La really Law?’ (1999) Regel/Maat 3, 126–40. Unlike the transaction costs approach in lawmaking, other theories underline statutory indeterminacy as a deliberate lawmaking strategy that resorts to persuasion rather than precise commands, enhancing the semiotic process of social interpretation of legal norms. The conceptualisation of communicative aspects of legislation constitutes a remarkable example in this regard. See, e.g., B. van Klink ‘Legislation, Communication, and Authority. How to Account for the Bindingness of Law?’, in A.D. Oliver-Lalana (ed.), Conceptions and Misconceptions of Legislation (Springer 2019) 81–106.
67 A. D. Oliver-Lalana, ‘Thou Shalt Balance: Making Sense of the Delegation of Proportionality Testing to the End Users Laws’ in J. R. Sieckmann (ed.), Proportionality, Balancing, and Rights (Springer 2021) 231–52.
68 W. N. Eskridge Jr., ‘Interpreting Legislative Inaction’ (1988) 87 Michigan Law Review 67.
69 Political scientists usually view stalemate as a phenomenon at an aggregate level, looking for the general ability of legislatures to process legal reform. D. R. Mayhew. Divided We Govern. Party Control, Lawmaking, and Investigations, 1946–2002 (Yale University Press 2005) 34. Nevertheless, we can also find stalemates in individual or discrete cases by observing the attempts at reform and the dissatisfaction with a single policy status quo.
70 S. A. Binder, Stalemate. Causes and Consequences of Legislative Gridlock. (Brookings Institution 2003) 126–33.
71 Other interpretations would subtly qualify my insight, asserting that elected officials approved the standard set forth in Roe, shifting the responsibility to set the issue, while both continued their mobilisation on abortion politics. S. E. Lemieux and G. Lovell, ‘Legislative Defaults: Interbranch Power Sharing and Abortion Politics’ (2010) 42 Polity 210.
72 H. L. A. Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593. H. L. A. Hart, The Concept of Law 121–132 (Clarendon 1961). For a debate on Hart’s example of legal vagueness, see L. L. Fuller, ‘Positivism and Fidelity to Law. A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630. A. D´Amato, ‘Can Legislatures Constraints Judicial interpretation of Statutes?’ (1989) 75 Virginia Law Review 561. 596–97. A. Marmor (n 6) 92–97.
73 P. Chiassoni, ‘Defeasibility and Legal Indeterminacy’ in J. Ferrer Beltrán and G. B. Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility (Oxford University Press 2012) 164–65. A well-established scholarship analyzes general term clauses in different jurisdictions. For some remarkable examples in the Anglo-American legal tradition, see E. Freund, ‘The Use of Indefinite Terms in Statutes’ (1921) 30 Yale Law Journal 437. R W. Aigler, ‘Legislation in Vague or General Terms Legislation in Vague or General Terms’ (1923) 21 Michigan Law Review 831. H. Hart, ‘Discretion’ (2013) 127 (2) Harvard Law Review 663.
74 For a basic exposition of different scholarly strands that approach judicial behaviour, see Segal and Spaeth (n 14).
75 L. Epstein and T. Jacobi, ‘The Strategic Analysis of Judicial Decisions’ (2010) 6 Annual Review of Law and Social Science 343.
76 L. J. Epstein and J. Knight, The Choices Justices Make (CQ Press 1997).
77 R. Posner, Overcoming Law (Harvard University Press 1995) 135–9.
78 Ibid 139.
79 In Posner´s model, the path of private legal practice comprises an alternative cost whose assessment directly countervails the eventual profits of a judicial career. In this model, meanwhile, the alternatives of job placement after the bench constitute an indirect cost in judicial behaviour since they can reduce the direct costs produced by a political backlash, chiefly the losses of an eventual dismissal.
80 D. Klein and D. Morrisroe, ‘The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals’ (1999) 28 The Journal of Legal Studies 371.
81 Such rhetorical practices extend beyond the search for prestige and are related to the ability to foster compliance and reputation. A. Jakab, A. Dyevre and G. Itzcovich (eds.), Introduction. Comparing Constitutional Reasoning with Quantitative and Qualitative Methods. In A- Jakab, A. Dyevre and G. Itzcovich, Comparative Constitutional Reasoning (Cambridge University Press 2017) 18–19.
82 L. Baum, Judges and Their Audiences. A Perspective on Judicial Behavior (Princeton University Press 2006). Stephenson, (n 7) 202.
83 Epstein and Knight (n 77) 22–55.
84 N. Garoupa and T. Ginsburg, Judicial Reputation. A Comparative Theory (The University of Chicago Press 2015) 16. 20–24. S. Dothan. Reputation and Judicial Tactics. A Theory of National and International Courts (Cambridge University Press 2014) 11. 52–54.
85 G. Helmke, Courts and Judicial Manipulation in Latin America. In C. Hübner Mendes, R. Gargarella, S. Guidi (eds.), The Oxford Handbook of Constitutional Law in Latin America (Oxford University Press 2022) 416–29. J. E. Moliterno, P. Čuroš, ‘Recent Attacks on Judicial Independence: The Vulgar, the Systemic, and the Insidious’ (2021) 22 German Law Journal 1159.
86 T. Daly, ‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay’ 23(8) German Law Journal 1071–103.
87 W. Eskridge, ‘Overriding Supreme Court Statutory Interpretation Decisions’ (1991) 101 Yale Law Journal 331–41.
88 B. Opeskin, ‘Models of Judicial Tenure: Reconsidering Life Limits, Age Limits, and Term Limits for Judges’ (2015) 35 Oxford Journal of Legal Studies 627.
89 The path to reaching the higher judicial echelons inside the Japanese judicial system, is an illustrative example in this regard D. S. Law, ‘The Anatomy of a Conservative Court: Judicial Review in Japan’ (2009) 87 Texas Law Review 1545.
90 F. Schauer, ‘Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior’ (2000) 68 University of Cincinnati Law Revew 615, at 631–632.
91 C. W. Clayton, ‘The Supreme Court and Political Jurisprudence: New and Old Institutionalisms’ in C. W. Clayton and H. Gillman (eds.), Supreme Court Decision-Making. New Institutionalist Approaches (The University of Chicago Press 1999) 15–42.
92 Assigning non-judicial legislative tasks to judges, like preparing reports on consultations for statutory congressional drafting or participating in experts’ law reform commissions, is exceptionally customary in some jurisdictions like Australia, Portugal, and Spain. Garoupa and Ginsburg (n 85) 90.93.
93 D. Kapiszewski, G. Silverstein and R. Kagan, ‘Conclusion. Of Judicial Ships and Winds of Change’ in D. Kapiszewski, G. Silverstein and R. Kagan (eds.), in Consequential Courts. Judicial Roles in Global Perspective (Cambridge University Press 2013) 406.
94 This partially explains why judges tend to deviate from their true preferences when the latter are not shared with members of the other branches. Lee Epstein, Jack Knight, and Andrew D. Martin, ‘The Supreme Court as a Strategic National Policymaker’ (2001) 50 Emory Law Journal 583, at 610.
95 Eskridge (n 48).
96 Judicial rulings can, in some cases, become precedents with extended authority. The stability of such rulings contributes to their saliency that, if satisfactory to the public, produce diffuse social approval of the court´s performance. J. Gibson, G.A. Caldeira and V. Baird, ‘On the Legitimacy of National High Courts’ (1998) 92(2) The American Political Science Review 343-358. We should expect additional transaction costs for the legislative overruling of such judicial decisions.
97 M. Pickerill, Constitutional Deliberation in Congress. The Impact of Judicial Review in a Separated System (Duke University Press 2004). For studies providing a general assessment of the impact of judicial review on administrative agencies in common law jurisdictions, see M. Hertogh and S. Halliday (eds.). Judicial Review and Bureaucratic Impact. International and Interdisciplinary Perspectives (Cambridge University Press 2009).
98 G. Webber et al., Legislated Rights: Securing Human Rights through Legislation (Cambridge University Press 2018).
99 P. Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (Hart 2018).
100 In this light, constitutional design can establish remedies inviting congressional responses, like suspended declarations of invalidity in Canada. And courts should advance in the same direction, fostering lawmakers’ interventions, as happened with some human rights cases in Germany, South Africa, and Colombia. Kent Roach, ‘Dialogic remedies’ (2019) 17 International Journal of Constitutional Law 860.