Who Cares How Congress Really Works?

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails. This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.). The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens

Who Cares How Congress Really Works?

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails. This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation. Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.). The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens

The Growing Influence of the Courts over the Fate of Refugees

A number of migration scholars suggest that domestic courts have become the key protective institution for refugees. How can we explain this claim? One prominent explanation identifies group litigation as the key source of the increasing influence of the courts. How well does this explanation travel empirically? The article evaluates this explanation by examining the puzzling behaviour of German refugee NGOs. They have not entered the legal arena directly (either as parties or as interveners), nor have they concentrated on developing extensive litigation campaigns. Still, they are remarkably ‘judicialized’: their frequent engagement with the law in other respects has heightened their legal consciousness. Why have German refugee NGOs made such different choices than their North American counterparts and what do these choices tell us about the expanding influence of the courts over the fate of refugees in Germany and North America? To make sense of the different choices that these organizations have made, we need to understand the role that institutional norms and procedures, in particular policy legacies, have played in directing the behaviour and identity of these groups. For a number of reasons, German refugee NGOs historically have been discouraged from directly accessing the courts in favour of indirect participation. Since Canadian and American refugee organizations follow a pattern closer to the expectations of the (largely North American) literature on the subject, we need to be more careful in thinking through our presuppositions when constructing a theory of the worldwide expansion of judicial power

The \u3ci\u3eMajoritarian\u3c/i\u3e Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court\u27s decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view the decisions as examples of the Court protecting and advancing the interests of disadvantaged groups, while conservatives, apparently accepting this portrayal, argue that these cases demonstrate that the Court has aligned itself with leftist and elitist interests, rendering its opinions incongruent with majoritarian public thought. This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality. This Article explicates my thesis in three parts. Part I examines the body of works by constitutional theorists, critical legal scholars, and political scientists on judicial majoritarianism in order to construct an analytical framework for considering how Court doctrine reinforces dominant interests. The purpose of Part I is not to determine whether or not (or under what circumstances) the Court should be countermajoritarian, but instead to analyze substantial research that complicates, if not refutes, traditional understanding of the Court as undemocratic. Part II applies the analytical framework developed in Part I to Lawrence, Gratz, and Grutter and concludes that, contrary to popular portrayals, these decisions fortify, rather than aim to dismantle, social hierarchies of race, sexuality, class, and gender. Furthermore, Part II demonstrates that the Court explicitly grounds its rulings in these cases upon democratic considerations, thus lending support to arguments that contest countermajoritarian discourse. Part III utilizes social movement theory to explain the enthusiastic reaction of liberals to Lawrence, Gratz, and Grutter. Part III argues that civil rights organizations enthusiastically received these cases, despite their limitations, because for years these groups have conducted litigation and activism within a conservative legal framework that generally opposes affirmative action and gay rights agendas. Part III then offers strategic considerations for legal theorists and activists who seek progressive legal change before a majoritarian Court

Strictness and Subsidiarity: An Institutional Perspective on Affirmative Action at the European Court of Justice

The move to strict review of gender equality cases by the European Court of Justice raises questions regarding the institutional role of the Court. Comparisons between the ECJ\u27s affirmative action case law and US jurisprudence serve to illuminate the very different role played by the ECJ as the central arbiter of a supranational judiciary. In its readiness to decide contextual issues better left to the national courts, the European Court has taken an American approach to affirmative action out of keeping with its role. Closer attention to the dynamics of the Court\u27s partnership with national judiciaries would serve as a step toward a functional conception of judicial subsidiarity

Looking at the Lanham Act: Images in Trademark and Advertising Law

Words are the prototypical regulatory subjects for trademark and advertising law, despite our increasingly audiovisual economy. This word-focused baseline means that the Lanham Act often misconceives its object, resulting in confusion and incoherence. This Article explores some of the ways courts have attempted to fit images into a word-centric model, while not fully recognizing the particular ways in which images make meaning in trademark and other forms of advertising. While problems interpreting images are likely to persist, this Article suggests some ways in which courts could pay closer attention to the special features of images as compared to words

The \u3ci\u3eMajoritarian\u3c/i\u3e Difficulty: Affirmative Action, Sodomy, and Supreme Court Politics

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court\u27s decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view the decisions as examples of the Court protecting and advancing the interests of disadvantaged groups, while conservatives, apparently accepting this portrayal, argue that these cases demonstrate that the Court has aligned itself with leftist and elitist interests, rendering its opinions incongruent with majoritarian public thought. This Article challenges liberal and conservative assessments of Lawrence, Gratz, and Grutter. Although the outcome of these cases might indeed prove helpful to the agendas of social movements for racial and sexual justice, progressive scholars and activists should not receive these cases with elation. Instead, the research of constitutional theorists, critical legal scholars, and political scientists allows for a more contextualized and guarded account of and reaction to these decisions. Instead of representing extraordinary victories for oppressed classes, these cases reflect majoritarian and moderate views concerning civil rights, and the opinions contain many doctrinal elements that reinforce, rather than dismantle, social subordination. Only a sober reading of these cases can permit equality theorists to place the decisions within a broader movement that contests narrow conceptions of legal and social equality. This Article explicates my thesis in three parts. Part I examines the body of works by constitutional theorists, critical legal scholars, and political scientists on judicial majoritarianism in order to construct an analytical framework for considering how Court doctrine reinforces dominant interests. The purpose of Part I is not to determine whether or not (or under what circumstances) the Court should be countermajoritarian, but instead to analyze substantial research that complicates, if not refutes, traditional understanding of the Court as undemocratic. Part II applies the analytical framework developed in Part I to Lawrence, Gratz, and Grutter and concludes that, contrary to popular portrayals, these decisions fortify, rather than aim to dismantle, social hierarchies of race, sexuality, class, and gender. Furthermore, Part II demonstrates that the Court explicitly grounds its rulings in these cases upon democratic considerations, thus lending support to arguments that contest countermajoritarian discourse. Part III utilizes social movement theory to explain the enthusiastic reaction of liberals to Lawrence, Gratz, and Grutter. Part III argues that civil rights organizations enthusiastically received these cases, despite their limitations, because for years these groups have conducted litigation and activism within a conservative legal framework that generally opposes affirmative action and gay rights agendas. Part III then offers strategic considerations for legal theorists and activists who seek progressive legal change before a majoritarian Court

The Disruptive Neuroscience of Judicial Choice

Scholars of judicial behavior overwhelmingly substantiate the historical presumption that most judges act impartially and independent most of the time. The reality of human behavior, however, says otherwise. Drawing upon untapped evidence from neuroscience, this Article provides a comprehensive evaluation of how bias, emotion, and empathy—all central to human decision-making—are inevitable in judicial choice. The Article offers three novel neuroscientific insights that explain why this inevitability is so. First, because human cognition associated with decision-making involves multiple, and often intersecting, neural regions and circuits, logic and reason are not separate from bias and emotion in the brain. Second, bias, emotion, empathy and other aspects of our cognition can be implicit, thereby shaping our behavior in ways that we are unaware. This challenges the longstanding assumption that a judge can simply put feelings aside when making judicial decisions. Third, there is no basis in neuroscience to support the idea that judges are exempt from these aspects of human cognition. These findings disrupt widespread faith in the unassailable rationality and impartiality of judges, and demonstrate how such views are increasingly at odds with evidence about how our brains work. By offering an original descriptive account of judicial behavior that is rooted in neuroscience, this Article provides a novel exposition of why bias, emotion and empathy have the capacity to influence the choices judges make. Doing so asks us to view judges as the humans they are