Interbranch Communication in the Modern Congress

Jarrod Shobe, Yale Law School

Abstract

Many legal scholars and judges believe that Congress and courts have communication problems. These communication problems are attributed to the messy political nature of congressional behavior and not the well-reasoned world of judicial decision making. As Professors Vermuele and Sunstein have written, legislation scholars generally work “with an idealized, even heroic picture of judicial capacities and, as a corollary, a jaundiced view of the capacities of other lawmakers and interpreters, such as agencies and legislatures.” This is partially because legal scholars leave the analysis of Congress to political scientists and focus primarily on judges, which is understandable given the legal academy’s inexperience in the area of congressional lawmaking. This emphasis on courts leaves the statutory interpretation literature with a decidedly underdeveloped and ungrounded understanding of what Congress is and how it works.