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80 Geo. L.J. 653 (1991-1992)
Bridging the Statutory Gulf between Courts and Congress: A Challenge for Positive Political Theory

handle is hein.journals/glj80 and id is 677 raw text is: Bridging the Statutory Gulf Between Courts and Congress: A Challenge for Positive Political Theory ROBERT A. KATZMANN* The premises, analyses, and normative implications of positive political theory have stirred much debate.' As positive political theorists widen their lens to include legislative-judicial relations,2 their models will have to explain the extent to which, and circumstances in which, courts and Congress take * President, the Governance Institute; Visiting Fellow, Brookings Institution. I am grateful to William Eskridge and Lawrence Evans for their comments. I very much appre- ciate as well the counsel and invaluable active participation of two Governance Institute colleagues in the project on statutory housekeeping, Judge Frank M. Coffin, a founding director of the Govern- ance Institute, and Robert W. Kastenmeier, Distinguished Fellow of the Institute. I am also thank- ful to the judges of the U.S. Court of Appeals for the D.C. Circuit, in particular Chief Judge Abner J. Mikva, Judge James L. Buckley, Judge Ruth Bader Ginsburg and Judge Patricia M. Wald, and D.C. Circuit chief staff counsel Mark Langer, as well as to Robert Feidler, Legislative and Public Affairs Officer of the Administrative Office of the U.S. Courts. I acknowledge the many persons on Capitol Hill who have given so generously of their time. Robert Willard, Kathryn Hynes, and Peter Martin of Mead Data Corporation have provided us with invaluable support. The support of Brookings's governmental studies program and its director, Thomas E. Mann, was most helpful. 1. See, e.g., Symposium, The Organization of Political Institutions, 6 J.L. ECON. & ORGANIZA- TION, Special Issue 1990, at 1 (articles by John Ferejohn and Charles Shipan; Susan Rose-Acker- man; Matthew Spitzer; Kenneth Shepsle and Barry Nalebuff; Keith Krehbiel; Robert Inman and Michael A. Fitts; Matthew D. McCubbins; William P. Rogerson; Michael E. Levine and Jennifer L. Forrence; Robert A. Katzmann; Terry M. Moe; Morris P. Fiorina; Oliver E. Williamson; Jerry L. Mashaw; and Cass R. Sunstein); Symposium on the Theory of Public Choice, 74 VA. L. REV. 167 (1988) (articles by Abner J. Mikva; Geoffrey Brennan and James M. Buchanan; Dwight R. Lee; Mark Kelman; William N. Eskridge; Robert D. Tollison; William H. Riker and Barry R. Weingast; Glen 0. Robinson; Daniel A. Farber and Philip P. Frickey; and Jonathan R. Macey). For a critical introduction, see DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITI- CAL INTRODUCTION (1991) (examining the policy effects of the competing interests of the public and private interest groups through political economic theory of public choice). For a critique of congressional dominance and public choice, see JAMES Q. WILSON, BUREAUCRACY: WHAT Gov- ERNMENT AGENCIES DO AND WHY THEY Do IT (1989); Terry M. Moe, An Assessment of the Positive Theory of Congressional Dominance, 12 LEGIS. STUD. Q. 475 (1987) (suggesting theory of congressional dominance is unsuited to an analysis of bureaucratic control and questioning the outcome of theory's empirical study). 2. See, e.g., William N. Eskridge, Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CALIF. L. REV. 613, 616-17 (1991) (proposing a model of the court as one political actor in a game played with Congress and the Presidency); John Ferejohn & Barry A. Weingast, Limitation of Statutes: A Strategic Theory of Interpretation, 80 GEO. L.J. 565 (1992); William N. Eskridge & John Ferejohn, Making the Deal Stick: Enforcing the Original Constitu- tional Structure of Lawmaking in the Modern Regulatory State (1991) (using game theory to de- scribe how courts may systematically make decisions on the lawmaking process that reflect the Constitution's original structures for lawmaking) (unpublished manuscript on file with The Ge- orgetown Law Journal); John Ferejohn & Charles Shipan, Congressional Influence on Telecommu- nications Policy (March 21, 1988) (examining how decisions by noncongressional actors, including

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