Journal Article

LEGISLATIVE UNDERWRITES

Leib, Ethan J., Brudney, James J.

2017

Overview

This Article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites, which reflect more collaborative dimensions of interbranch interaction. This Article begins to fill that void, and in so doing, frames practical and theoretical lessons for legislative, judicial, and scholarly audiences. More specifically, this Article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels.

• Publisher: VIRGINIA LAW REVIEW ASSOCIATION,The Virginia Law Review Association
• Subject: Collaboration / COSTS / Court decisions and opinions / DIVERSITY / Interpretation and construction / JUDGMENTS / Judicial process / JUDICIARY / Law / Law schools / Legal research / Legislatures / Pragmatism / Restraint of trade / State court decisions / State laws / STATUTORY INTERPRETATION / Underwriting / United States. Congress