This book examines the role of minority party status on politicians’ engagement in electoral politics. Jacob Smith argues that politicians are more likely to be engaged in electoral politics when they expect their party to be in the majority in Congress after the next election and less likely when they anticipate their party will be in the minority. This effect is particularly likely to hold true in recent decades where parties disagree on a substantial number of issues. Politicians whose party will be in the majority have a clear incentive to engage in electoral politics because their preferred policies have a credible chance of passing if they are in the majority. In contrast, it is generally difficult for minority party lawmakers to get a hearing on—much less advance—their preferred policies, particularly when institutional rules inside Congress favor the majority party. Instead, minority party lawmakers spend most of their time fighting losing battles against policy proposals from the majority party. Minority Party Misery examines the consequences of the powerlessness that politicians feel from continually losing battles to the majority party in Congress. Its findings have important consequences for democratic governance, as highly qualified minority party politicians may choose to leave office due to their dismal circumstances rather than continue to serve until their party eventually reenters the majority.
American law schools extol democracy but teach little about its most basic institution, the Congress. Interpreting statutes is lawyers’ most basic task, but law professors rarely focus on how statutes are made. This misguided pedagogy, says Victoria Nourse, undercuts the core of legal practice. It may even threaten the continued functioning of American democracy, as contempt for the legislature becomes entrenched in legal education and judicial opinions. Misreading Law, Misreading Democracy turns a spotlight on lawyers’ and judges’ pervasive ignorance about how Congress makes law.
Victoria Nourse not only offers a critique but proposes reforming the way lawyers learn how to interpret statutes by teaching legislative process. Statutes are legislative decisions, just as judicial opinions are decisions. Her approach, legislative decision theory, reverse-engineers the legislative process to simplify the task of finding Congress’s meanings when statutes are ambiguous. This theory revolutionizes how we understand legislative history—not as an attempt to produce some vague notion of legislative intent but as a surgical strike for the best evidence of democratic context.
Countering the academic view that the legislative process is irrational and unseemly, Nourse makes a forceful argument that lawyers must be educated about the basic procedures that define how Congress operates today. Lawmaking is a sequential process with political winners and losers. If lawyers and judges do not understand this, they may well embrace the meanings of those who opposed legislation rather than those who supported it, making legislative losers into judicial winners, and standing democracy on its head.
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