Download Legislative Deferrals: Statutory Ambiguity, Judicial Power, by George I. Lovell PDF

By George I. Lovell

Usa judges are criticized for making legislation once they can be following the legislation made by way of elected officers. This e-book argues that a lot of the blame for judicial policymaking lies with elected officers. Legislators occasionally intentionally permit judges to make coverage judgements simply because they wish to prevent blame for making tough offerings. to illustrate the significance of legislative deference, this research reexamines dramatic confrontations among Congress and the preferrred courtroom over hard work coverage within the early 20th century.

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Additional info for Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy

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Gerald Rosenberg’s The Hollow Hope (1991) is structured on the assumption that the best opportunities for the courts to demonstrate the power to produce social change occur during periods when judges take positions that are at odds with the political branches. Rosenberg tests the limits of judicial power by focusing on periods when the judiciary attempted to produce social change without the concurrence of Congress and downplays the possibility that judges were responsible for changes that occurred during periods when legislators supported the courts.

However, the assumption is usually hidden by the disagreements among scholars about what motivates different institutional actors who take part in such competitions, particularly disagreements about what motivates judges. Attitudinalists have found that judges make choices according to their individual ideologies (Segal and Spaeth 1993, Segal 1997). Rational choice scholars have suggested that judges’ pursuit of their policy preferences is constrained by the institutional powers of competing legislators (Maltzman, Spriggs, and Wahlbeck 1999, 48–51).

It is difficult, however, to isolate blame-shifting strategies as aberrational or deviant features in any separation of powers system. The problem here is that there seems to be an essential link between blame shifting and separation of powers. Institutional structures that diffuse power inevitably diffuse responsibility as well. To see these connections, consider an alternative institutional system in which it is more difficult for elected officials to shift blame to other actors: A government with an all-powerful elected dictator.

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