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Misreading Law, Misreading Democracy Hardcover – September 26, 2016
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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, author of Divergent Paths: The Academy and the Judiciary)
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, Columbia Law School)
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, Jr., Yale Law School)
About the Author
Victoria Nourse is Professor of Law and Director of the Center on Congressional Studies at Georgetown Law School.
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Top Customer Reviews
The first chapter kicks off things by reminding us that Congress is not a court, and interpreting courts ought not to apply judicial standards when seeking to determine the meaning of statutes. Forget intent, the author contends, and concentrate instead on the decisions that Congress makes as it develops legislation. Understand that statutory ambiguity is not the result of ineptitude, but essential to the legislative process. Why?--because of the electoral connection with constituents and the challenges of passing legislation. Again, the message is, take Congress on its own terms.
One of the strongest chapters deals with theories of statutory interpretation. Here the author dissects and deconstructs a number of key theories often argued as justification by federal judges and others. These include textualism, plain meaning, purposivism, and contract theories among others. The author's extensive experience as a law professor and student of the legislative process really pays off as her sometimes withering analysis riddles these theories with major holes. Again, all this theorizing is not essential; rather focus on how Congress works and makes decisions.
In Chapter 3, the author articulates in careful detail how statutes ought to be interpreted--this is the crucial stuff we never got in law school. Particularly effective are her canons (which you won't find in Scalia/Garner) focusing on the sequence of legislation, how to find the correct legislative history, and what might be unthinkable to a judge is not unthinkable to a member of Congress. This chapter is complimented by the next focused on "petty textualism, canons, and cognitive balance." The targets here are Scalia/Garner's "Reading Law," their arguments for employing canons (which Judge Posner also has lacerated), spurious interpretation, and blinding oneself to legislative evidence. Chapter 5 discusses "what is legislative intent?" Chapter 6 becomes a brief disproving that reliance upon accurate legislative history is unconstitutional, predicated on the "proceedings clause," Art. I, sect. 5 of the constitution.
This is not cozy bedtime reading--it can be extremely abstract, detailed, and minute in focus. But does it get the job done. The author is skillful in using actual examples where the courts have misinterpreted Congressional statutes because they lacked familiarity with the legislative process. It should be recognized, as the author does to an extent, that to the uninitiated (including myself) wading through Congressional material is not the easiest process and often leaves one confused. Congress could contribute by developing materials on how it works and how to grapple with legislative history. Until that day, this book just performs an enormous service that must be acknowledged with much thanks.