SSRN includes a post of a new paper by Daniel Rodriquez and Barry Weingast. The abstract and reference are below. The idea is that interest group strategies to expand the scope of regulatory statutes through adjudicative action have backfired: they have made it difficult for legislators to agree on new progressive regulatory statutes. If you buy this argument, I have another one for you: could it be that fidelity to text in the international trade treaty field, and modest adherence by trade judges to their mandate, is the best way to ensure the ability of diplomats to reach new agreements.
Is this another take on Joe Weiler's famous The Transformation of Europe story: it wasn't that judicial activisim substituted for legislative capacity--judicial activism suppressed the development of legislative capacity?
Just some blog speculation . . . .
"The Paradox of Expansionist Statutory Interpretations"
San Diego Legal Studies Paper No. 07-39
Contact: DANIEL B. RODRIGUEZ
University of San Diego School of Law
Email: [email protected]
Auth-Page: http://ssrn.com/author=45840
Co-Author: BARRY R. WEINGAST
Stanford University - The Hoover
Institution on War, Revolution and Peace
Email: [email protected]
Auth-Page: http://ssrn.com/author=15647
Full Text: http://ssrn.com/abstract=895604
In this article, we revisit the relationship between judicial
interpretation of legislation and policymaking in the modern
Congress. We develop a model of legislative decisionmaking, drawn
from the influential work of positive political theory, and use
this model to consider a puzzle in the contemporary lawmaking
process, that is, what explains the dearth of progressive social
legislation in the period from the early 1970's to the present?
We argue that much of this demise of the progressive legislative
agenda can be attributed to the decision of influential interest
groups to push aggressively for expansionist interpretations of
regulatory statutes, interpretations that go well beyond the
terms of the statute and, as well, beyond the expectations of the
legislators whose support was critical in securing the passage of
this legislation. Paradoxically, as we explain, these expansions
have made it more difficult for legislators to reach agreements
within the lawmaking process and thereby defeated the very
agendas for which interest groups have pushed. Moreover, these
expansionist interpretations have contributed to the growing
polarization within the modern Congress.