Misreading Law, Misreading Democracy

by Victoria Nourse

Overview

American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.

Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.

Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.

Product Details

ISBN-13:	9780674974272
Publisher:	Harvard University Press
Publication date:	09/26/2016
Sold by:	Barnes & Noble
Format:	eBook
Pages:	208
File size:	815 KB

About the Author

Victoria Nourse is Professor of Law and Director of the Center on Congressional Studies at Georgetown Law School.

Table of Contents

Cover Title Copyright Dedication Contents Prologue: The Paradox of American Civic Illiteracy Chapter 1. Congress Is Not a Court Chapter 2. Statutory Interpretation Theories Misunderstand Congress Chapter 3. A Legislative Decision Theory of Statutory Interpretation Chapter 4. Petty Textualism, Canons, and Cognitive Bias Chapter 5. What Is Legislative Intent? Evidence of Context Chapter 6. The Constitutional Argument for Legislative Evidence Epilogue: Courts and Congress as Faithful Agents of Democracy Notes Acknowledgments Index

Editorial Reviews

Nourse convinces that America’s judges, law professors, and lawyers know perilously little about the most important branch of government—the United States Congress—and spells out the consequences this gap in our collective knowledge have for governance. Helping to fill that gap, this accessible book takes on those who practice ‘petty textualism’ while offering an approach to statutory interpretation that is both more professionally satisfying and consistent with our representative democracy. Brava!

William N. Eskridge

Professor Nourse has written a book of comprehensive, devastating criticism of how judges, including Supreme Court Justices, interpret (or pretend to interpret) congressional enactments. The canons of statutory construction, plain meaning, textualism, literalism, originalism—all these crutches fall, felled by her cannons.

Richard A. Posner

Misreading Law, Misreading Democracy is important reading for anyone seriously interested in understanding statutes, and especially so for judges. Their ignorance of/indifference to Congress’s processes is an affront both to the means by which most law is created today, and to the democratic values implicit in its emergence from the actions of an elected body.

Peter L. Strauss