Continental Parlors 1&2 Hilton San Francisco and Towers Ballroom Level
Section on Legislation John F. Manning, Columbia University, Chair Elizabeth Garrett, The University of Chicago, Program Chair
Theories of the Political Process and Theories of Interpretation
Moderator:
Elizabeth Garrett, The University of Chicago
Speakers:
John Ferejohn, New York University Daniel B. Rodriguez, University of San Diego Jane S. Schacter, University of Wisconsin Adrian Vermeule, The University of Chicago [View Program Material]
Modern scholarship increasingly frames questions of statutory interpretation in terms of the background political process. For example, both interest-group and game theory have come to occupy an important role in the debate over legislative intent and purpose, stare decisis, judicial review of agency interpretations of statutes, and the use of cannons of construction (including clear statement rules). More recently, scholarship in the pragmatic tradition has called for empirical inquiry into the effect of interpretive theory on the performance of political actors responsible for enacting statutes. And other recent scholarship has sought to broaden the inquiry into statutory interpretation by emphasizing not merely theories of the legislative process, but also theories of the appropriate judicial lawmaking role in relation to statutes. This panel will explore the following questions: (1) To what extent should theories of the political process influence the choice by courts and agencies of any particular theory of statutory interpretation? (2) How does one determine the relevance and validity of competing theories of the political process? (3) How much should the inquiry focus on the legislative process, as opposed to questions of judicial capacity and competence? (4) Can theories of the political process meaningfully guide interpretive theory without empirical inquiry into the processes at stake? (5) Do theories of the political process call for a different theory of interpretation in contexts involving direct democracy?