Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (review)

The conventional perspective on the separation of powers between the legislative and judicial branches of the U.S. federal system holds that legislatures, not courts, should be responsible for making policy; when courts make policy, they undermine democracy; and legislators would not invite unelected and unaccountable judges to engage in policymaking. In a compelling challenge to this conventional view, Legislative Deferrals offers an examination of labor law and politics during the Lochner era, and undermines the now commonplace account of a conservative and independent judiciary overturning progressive and democratically constructed labor legislation.¹ In his retelling of the legislative passage and judicial interpretation of key labor statutes, Lovell presents evidence that questions core assumptions about the nature of democratic, legislative, and judicial processes.

Providing detailed and assiduously researched case studies of the Erdman, Clayton, Norris-LaGuardia, and Wagner Acts—federal labor statutes enacted between 1898 and 1935—Lovell demonstrates that lawmakers invited and empowered judicial policymaking. Not only did legislators directly extend enforcement and supervisory authority to judges; they also engaged in a practice that Lovell calls "legislative deferral," that is, the intentional enactment of ambiguous statutory provisions that allows judges to deliver policy interpretations and thereby craft policy. Lovell shows the absence of Congressional consensus about the outcome of labor policy and explains that participants in the legislative process anticipated judicial reactions and shaped legislation in a manner that permitted judicial resolution of interpretive controversies. Lovell concludes that "it is not possible to understand the impact or legitimacy of judicial decisions by asking whether policies established by judges match some policy outcome preselected in Congress" (254). In contrast to the image of judicial usurpation of legislative authority, the portrait painted by legislative deferrals reveals "the important ways in which electoral pressures on Congress lead legislators to empower judges," and, in turn, how "judicial policy making can be responsive to electoral controls in ways that conventional scholars ignore" (xix).

Lovell's conclusions are grounded in a research method that is, as he admits, limited by its focus on four cases studies that cover a single policy area. This method raises some concern about the reach and generalizability of Lovell's conclusions. This limitation notwithstanding, Lovell has chosen his case studies well. Persuasively defending his focus on labor statutes enacted during the Lochner era, Lovell says, "By deliberately selecting cases that other scholars have used to establish the importance of independent judicial power, I hope to increase the impact of my finding that judicial power is dependent on the choices made by legislators" (xviii).

Moreover, not to be overlooked is the exhaustive record upon which Lovell bases his findings. Beginning with the statutory language and the judicial rulings that interpret that language, Lovell examines records of Congressional committee hearings and floor debates in order to discern whether those who participated in legislative construction demonstrated awareness of the ambiguities that the Court would eventually adjudicate. He also draws upon records of the American Federation of Labor and the letters of Samuel Gompers. Bringing to bear "previously overlooked records" (xviii), his presentation and analysis are systematic. For each statute he chronicles a compelling and complex tale of legislative and judicial interdependence that supports his call for scholarship about legislative deference "before attempting to characterize judicial power as a threat to democratic accountability" (xx).

Lovell candidly acknowledges that his book does not "offer the final word on legislative deference" (xx). But this intriguing, well-crafted, and thoroughly readable book succeeds not only in raising serious doubts about the conventional view of legislative and judicial interaction but also in giving scholars incentive and a model for further examination of this important subject.