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

by George I. Lovell

United States judges are criticized for making law when they should be following the laws made by elected officials. This book argues that much of the blame for judicial policymaking lies with elected officials. Legislators sometimes deliberately allow judges to make policy decisions because they want to avoid blame for making difficult choices. To demonstrate the importance of legislative deference, this study reexamines dramatic confrontations between Congress and the Supreme Court over labor policy in the early twentieth century.

314 pages, Hardcover

First published June 18, 1999

Reviews

[Frank Stein · Rating 4 out of 5]

Fascinating enough that the ideas more than make up for the circuitous writing and tedious prose.

Not that that prose is necessarily Lovell's fault. The book delves into an area where few writers aiming for sales dare to tread, and one which hardly allows for easy reading: statutory language. Lovell's basic point, garnered from the intense study of four important labor statutes (the Erdman Act of 1898, the labor provisions of the Clayton Antitrust Act of 1914, the Norris-LaGuardia Act of 1932, and the grand Wagner Act of 1935) is that Congress frequently and consciously places ambiguous language in statutes with the hope that the court will have to ferret out the meaning for itself and take on the policy role Congress has avoided.

Lovell is right to point out that this observation seems to have a host of corollaries. For one, judges interpreting statutes with the assumption that Congress has a "message" it is trying to communicate may be coming at them the wrong way. Historians who see judges as "overturning" the will the people may have to admit these statutes don't really contain any clear "will" that can be overturned, and on, and on.

The main historical point here is that these statutes, each of which seemed to aim at preventing judges from declaring injunctions against striking or unionizing workers, were actually ambiguous messes. Most historians and many judges today seem to assume that just because some interest group, like labor unions, had the heft to get a provision into law, than that provision must be a means to satisfy that group. But Lovell shows that by simply placing an "or" in an opportune place, or adding "such" before the beginning of a new clause, these statutes could easily mean nothing at all. And this was not some legislative trick, but a collective ploy to satisfy disparate sides in Congress who could not come to agreement. Since judges in that era had already assumed such strong policy-making positions, such as by creating broad anti-labor injunctions in the first place, these statutes just punted policy-making back to them. Thus, for instance, the "Duplex" case of 1921, which is often derided today as an assault on the labor "Magna Carta," as Gompers called it, from the Clayton Act, was really a plausible reading of an abstruse law.

Here Lovell gets into some trouble, however. Often he himself seems to engage in shifting meanings, eliding together "ambiguous" language and "meaningless" language. The intensive legislative history of his first two cases, the Erdman and Clayton acts, actually seems to point to Congress adding no new rights at all, and only putting in language to assuage defeated laborites. That's not ambiguity, that's just complicated clarity that offers nothing in particular. Thus, as interesting as his arguments are, I'm not sure all of these acts prove them.

Also, the book can wind back and forth so much that it's nearly impossible to read. Either one should get ready for a slog, or just learn to enjoy the fresh thoughts as they come.