Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy

Why do unelected federal judges have so much power to make policy in the United States? Why were federal judges able to thwart apparent legislative victories won by labor organizations in the Lochner era? Most scholars who have addressed such questions assume that the answer lies in the judiciary's constitutionally guaranteed independence, and thus worry that insulated judges threaten democracy when they stray from baseline positions chosen by legislators. This book argues for a fundamental shift in the way scholars think about judicial policymaking. Instead of simply seeing judges as rivals to legislators, scholars need to notice that legislators also empower judges to make policy as a means of escaping accountability. The first book length study of legislative deference to the courts, Legislative Deferrals offers a dramatic reinterpretation of the history of twentieth century labor law and shows how attention to legislative deferrals can help scholars to address vexing questions about the consequences of judicial power in a democracy.

Table of Contents:
Acknowledgements; Preface; 1. Rethinking judicial policy making in a separation of powers system; 2. False victories: labor, congress, and the courts, 1898–1935; 3. 'As harmless as an infant': the Erdman Act in Congress and the courts; 4. Killing with kindness: legislative ambiguity, judicial policy making, and the Clayton Act; 5. The Norris–LaGuardia Act, for once: learning what to learn from the past; 6. Legislative deferrals and judicial policy making in the administrative state: a brief look at the Wagner Act; 7. Conclusion; Reference list; References; Index.

Review :
"...intriguing, well-crafted, and thoroughly readable..." Journal of Interdisciplinary History "[T]his is a terrific book." The Law and Politics Book Review "An insightful and innovative excursion into the complexities of congressional-judicial interaction, with a particular focus on how legislative action, or inaction, shapes the ultimate judicial interpretation of a law. It is a useful--indeed compelling--reminder that judicial decisions are not necessarily the product of ideological storks." Joel B. Grossman, Johns Hopkins University "Professor Lovell highlights an important feature in American politics, deliberate statutory ambiguity, offers several well-documented and well-written case studies of deliberate statutory anbiguity, and successfully demonstrates that both existing theories of statutory interpretation and the judicial function do not adequately account for this phenomenon. This is a book persons interested in public law, American political development, and labor law will find fascinating." Mark Graber, University of Maryland "In his Legislative Deferrals George Lovell uses four case studies of the legislative and judicial history of federal statutes governing industrial relations between 1898 and 1939 to probe the intricate dance between congress and the courts over the implementation of such laws. Political and labor historians especially will learn much from Lovell's key findings. First, that conservative, anti-labor jurists did not wrest power undemocratically from the people's representatives; instead, legislators finessed controversial political issues by consciously deferring to judicial authority. Second, that labor leaders lacked effective political influence, and meekly accepted diluted legislative compromises granted as a reward for behaving responsibly. Lovell's book smartly reinterprets the history of congressional industrial relations, law reform, and judicial intervention in the political process." Melvyn Dubofsky, Binghamton University, State University of New York "The strengths of Lovell's book are many. It is well organized with a clear hypothesis and a persuasive set of conclusions. It is also elegantly written. Indeed, the stories the author recounts, and the way he recounts them, certainly depict fascinating moments in American political history... a terrific book." Law and Politics Book Review "[Lovell] makes a compelling case. The book is clearly written and well documented... Highly recommended." Choice