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

Genetic issues in the diagnosis of dystonias

Dystonias are heterogeneous hyperkinetic movement disorders characterized by involuntary muscle contractions which result in twisting and repetitive movements and abnormal postures. Several causative genes have been identified, but their genetic bases still remain elusive. Primary Torsion Dystonias (PTDs), in which dystonia is the only clinical sign, can be inherited in a monogenic fashion, and many genes and loci have been identified for autosomal dominant (DYT1/TOR1A; DYT6/THAP1; DYT4/TUBB4a; DYT7; DYT13; DYT21; DYT23/CIZ1; DYT24/ANO3; DYT25/GNAL) and recessive (DYT2; DYT17) forms. However most sporadic cases, especially those with late-onset, are likely multifactorial, with genetic and environmental factors interplaying to reach a threshold of disease. At present, genetic counseling of dystonia patients remains a difficult task. Recently non-motor clinical findings in dystonias, new highlights in the pathophysiology of the disease, and the availability of high-throughput genome-wide techniques are proving useful tools to better understand the complexity of PTD genetics. We briefly review the genetic basis of the most common forms of hereditary PTDs, and discuss relevant issues related to molecular diagnosis and genetic counseling

Overrides: The Super-Study

Overrides should be of interest to a far larger group of scholars than statutory interpretation enthusiasts. We have, in overrides, open inter branch encounters between Congress and the Courts far more typically found in the shadows of everyday Washington politics. Interestingly, Christiansen and Eskridge posit the court-congress relationship as more triadic than dyadic given the role played by agencies. One of their more interesting conclusions is that agencie are the big winners in the override game: agencies were present in seventy percent of the override cases and the agency view prevailed with Congress and against the Supreme Court in three-quarters of those overrides. When the Supreme Court rejects the statutory interpretations of agencies, supported by the Solicitor General, it does so at its peril. This suggests that the common wisdom—that agencies often have a better handle than courts on Congress’s meaning because of their closer connections with Congress (through oversight, expertise about the statute, informal communications, etc.)—is true. It also suggests that broad congressional delegation to agencies—traditionally viewed with suspicion by lawyers—may come with a silver interpretive lining. The author makes no attempt to survey the richness of this gargantuan study nor the extraordinary effort it must have taken. It should be of interest to readers of court–congress interaction, students of agency action, scholars of statutory interpretation, and the separation of powers. Her aim is not to repeat the study, or even to summarize it, but to provide a parsimonious and helpful lens through which we may understand its intellectual assumptions and accomplishments. In part I, the author addressees its methodological virtues and vices. In part II, she posits a fairly parsimonious model that helps to explain the rich Christiansen and Eskridge findings. In part III, the author provides a brief comment on the authors’ recommendations for future action

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 Federal Reserve: A Study in Soft Constraints

In response to the greatest financial crisis since the Great Depression, the Federal Reserve (the Fed) took a number of unprecedented steps to try to minimize the adverse economic consequences that would follow. From providing liquidity injections to save companies like Bear Stearns and American International Group (AIG) to committing to a prolonged period of exceptionally low interest rates and buying massive quantities of longer-term securities to further reduce borrowing costs, the Fed\u27s response to the 2007 through 2009 financial crisis (the Crisis) has been creative and aggressive. These actions demonstrated that the Fed is uniquely powerful among federal agencies, and its authority is even greater than most had previously appreciated. They also made clear that the Fed\u27s actions can have significant distributional consequences, in addition to affecting the health of the overall economy. These developments have led many to suggest that the Fed should be far more accountable, or less powerful, than it currently is. Attacks on the Fed\u27s power are not new. Vesting so much power in the hands of an unelected few inevitably raises questions about legitimacy, for which there are no easy answers. Using traditional mechanisms to make the Fed more politically accountable could substantially impede the Fed\u27s capacity to achieve the aims assigned to it. Yet, as reflected in the demise of the First and Second Banks of the United States, ignoring these concerns can prove even more detrimental. In the United States, the outer limits of independence are delineated by the Constitution, but important questions regarding legitimacy and accountability arise far shy of the Constitution\u27s outer bounds. Many of these issues are not specific to the Fed, and there is a robust body of literature examining these dynamics. Nonetheless, this article suggests that many of the forces that influence the degree of independence that the Fed enjoys in practice are largely overlooked in much of this literature. Those overlooked forces are soft constraints, a range of forces that are not legally binding and that can even be a little fuzzy in application, but that nonetheless impose meaningful limits on how the Fed exercises its seemingly vast authority. This article illustrates the power of soft constraints by examining the role that two particular soft constraints – principled norms and the Fed Chair\u27s concern with her reputation – have played in shaping Fed action over the last hundred years

Presidential Control, Expertise, and the Deference Dilemma

Courts reviewing agency action frequently point to superior political accountability and expertise as justifying deference to agencies. These fundamentals of deference often operate in tandem, providing distinct but complimentary reasons why courts will not substitute their judgment for that of agencies. But when courts review agency actions arising from shared regulatory space, political accountability—often expressed as presidential control—and expertise can seem at odds. How should courts respond when, for example, one agency lays claim to presidential control but another relies on expertise, and the two take inconsistent positions so that a court must choose one over the other? This Article examines this deference dilemma and suggests a means for confronting it. Overall, this analysis reveals that the expertise and presidential-control justifications for deference do not fit neatly into statutory schemes involving overlapping or competing jurisdiction, particularly when an independent agency is involved. This conclusion exposes weaknesses in both models of deference and supports the claim that—presidential direction and expertise notwithstanding—fidelity to statute and the reasoned-decisionmaking requirements remain the touchpoints of judicial review. These touchpoints are central to unlocking the deference dilemma and resolving it in a principled manner, as demonstrated by the framework developed in this Article. Approaching deference dilemmas in this way helps facilitate congressional control while recognizing the policymaking authority of the executive branch, and ultimately contributes to a norm that accounts for the roles of all three branches in administrative law

01-12-2016 Trio of SWOSU Students Awarded AAUW Scholarships

Southwestern Oklahoma State University students Morgan Bressman of Lawton, Yesenia Hernandez of Clinton and Catherine Schubert of Weatherford were recently awarded scholarships from the American Association of University Women branch in Weatherford

Wasserman v. Bressman

United States District Court for the District of New Jerse