How do issues end up on the agenda? Why do lawmakers routinely invest in program oversight and broad policy development? What considerations drive legislative policy change? For many, Congress is an institution consumed by partisan bickering and gridlock. Yet the institution's long history of addressing significant societal problems - even in recent years - seems to contradict this view. Congress and the Politics of Problem Solving argues that the willingness of many voters to hold elected officials accountable for societal conditions is central to appreciating why Congress responds to problems despite the many reasons mustered for why it cannot. The authors show that, across decades of policy making, problem-solving motivations explain why bipartisanship is a common pattern of congressional behavior and offer the best explanation for legislative issue attention and policy change.

Congress and the Politics of Problem Solving

The Legacy of Anglo-American Textualism

This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.

Controlling Administrative Power: An Historical Comparison

olitical scientists have long recognized the importance of courts as political actors. However, while an extensive literature examines the judiciary's strategic interaction with the other branches of government (e.g., Ferejohn and Weingast 1992; Gely and Spiller 1992), less attention has been paid to the effects of the institutional structure of the courts themselves on patterns of judicial decision-making. Yet models of the judiciary's unique institutional dynamics are essential to understanding the courts, just as analyses of congressional committees (e.g., Gilligan and Krehbiel 1990; Shepsle and Weingast 1987) or the bureaucracy (e.g., Moe 1982) are essential to understanding the legislative and executive branches. We develop a formal model that demonstrates how the problem of communication between different levels of a hierarchical court system,

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Informative Precedent and Intrajudicial Communication

There is widespread agreement that independent courts are crucial to the growth of a nation, yet analysis of the development of the institutions of an independent judiciary is difficult, because effective judicial institutions seldom change. In this paper, I develop a simple model and use it to investigate a judicial institution that offers substantial variation to explore: the manner by which judges are selected and retained in the American states. Five different selection and retention procedures have been designed and disseminated over the last 200 years. The paper concludes that each new procedure emerged in response to an evolving understanding about the nature and significance of the relevant agency problems. In short, both the need for, and the appropriate institutional structure to support, an independent judiciary had to be learned.

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Learning About Judicial Independence: Institutional Change in the State Courts

Stare Decisis and Demonstrably Erroneous Precedents

In discussions of statutory interpretation, people often suggest that textualists and intentionalists have fundamentally different goals: intentionalists try to identify the subjective intent of the enacting legislature, while textualists care only about the objective meaning of the statutory text. This distinction, however, is far less helpful than the rhetoric on both sides suggests. To begin with, the distinction itself is exaggerated; judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature. Many textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider, but those restrictions need not reflect any fundamental disagreement about the goals of interpretation. In any event, whatever disagreements may exist on this score do not account for the most significant differences between textualism and intentionalism. Thus, even when there is no useful legislative history on some question of interpretation (and hence no intrinsic reason for the objective meaning sought by textualists to diverge from the subjective intent sought by intentionalists), one can still expect to observe systematic differences between the results reached by textualists and the results reached by intentionalists. For people seeking to describe how textualism and intentionalism really differ, the familiar distinction between rules and standards is a more productive starting point than the distinction between objective meaning and subjective intent. Within certain constraints, all mainstream interpreters seek the meaning intended by the enacting legislature. As a methodological matter, however, textualists seem to believe that a relatively rule-based approach to interpretation is likely to bring judges closer to that goal than the more holistic techniques favored by intentionalists. As a normative matter, moreover, textualists are more likely than intentionalists to resolve uncertainties in favor of ruleness; when the meaning intended by the enacting legislature is concededly unclear, it is unusual for intentionalists to settle upon a more rule-like interpretation than textualists. Without regard to any purported disagreement about the goals of interpretation, these twin differences are capable of generating most of the divide that we currently observe.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID606424_code104659.pdf?abstractid=606424&mirid=3

What Is Textualism

In all living languages, the conventional usages of individual words change over time. For illustrations, one need only consult the Oxford English Dictionary, which arranges its definitions of each word so that they proceed from the earliest usages to those that were introduced more recently.' This aspect of language change raises an obvious issue for the interpretation of our written constitutions. The federal Constitution, in particular, was \"intended to endure for ages to come,' 2 and it seems inevitable that some of the words it uses will acquire new connotations from one age to the next. So-called \"originalists\" have focused on this issue and have staked out a clear position: They believe in enforcing the Constitution's \"original meaning\" rather than whatever meaning the same words would have if adopted today. Originalists accordingly emphasize old dictionaries and other evidence of how the words in the Constitution were used at the time of the founding.' What originalists think of as a law's \"original meaning,\" though, does not depend solely upon the dictionary definitions of the individual words that the law uses. It also depends upon a variety of other linguistic conventions.' Some of those conventions are part of the English language in general; to understand almost any document written in English, one needs to know not only the conventional usages of individual words, but also the grammatical rules that govern how words are combined and the interpretive principles that tell us which inferences are appropriate in which circumstances. Other conventions are

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Originalism and Interpretive Conventions

UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, 1998 to present: Emerson G. Spies Distinguished Professor of Law, 2008 to present Professor of Law, 2003 to 2008; Associate Professor of Law, 1998 to 2003 Research chairs held: Elizabeth D. and Richard A. Merrill Professor, 2013 to present Class of 1966 Research Professor, 2009 to 2012 Albert Clark Tate, Jr., Research Professor, 2004 to 2007 All-University Teaching Award, 2008 McFarland Award, 2006 (awarded every two years to a member of Virginia’s junior faculty for excellence in scholarship) Paul M. Bator Award, Federalist Society, 2006 Visiting Professor, Harvard Law School, Fall 2006 Winner of the Scholarly Papers Competition, Association of American Law Schools, 2000 Courses taught: Civil Procedure, Federal Courts, Legislation, Constitutional Law

http://ajlh.oxfordjournals.org/content/ajlh/37/2/190.full.pdf

Caleb Nelson

Papers

Stare Decisis and Demonstrably Erroneous Precedents

What Is Textualism

What Is Textualism

Originalism and Interpretive Conventions

A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America