Mark Tushnet (Harvard Law School) has posted Taking the Law Away from the Courts on SSRN. Here is the abstract:
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This article challenges hallowed American traditions of the judicial role in the adjudication of disputes. These traditions effectively create ultimate judicial supremacy on almost every legal question. Many people, both liberals and conservatives, have "warm and fuzzy" feelings about judicial review. They are nervous about about the damage that might be done to the rule of law in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving the common law, statutes, and constitutional provisions, this article argues that all citizens should take take responsibility for the interpretation, application, and development of the law. Guarding the rule of law is not the preserve of judges, but a commitment of the citizenry to define itself as "We the People of the United States." The law belongs to us collectively, as we act in political dialogue with each other--whether in the street, in the voting booth, or in the legislature as representatives of others.
The article argues that we should create a "populist" rule of law in which judges and courts play no role. The traditional traditional functions--adjudication of disputes and the elaboration and development of the law--can instead by performed a system of political institutions that distribute these functions in an institutionally appropriate way. The development and elaboration function can be performed by legislative committees; at the federal level, this function could be performed by committees of the House of Representatives that would be granted authority to promulgate "legislative directives" that would have the force of law unless they were countermanded by a statute that satisfies the requirements of bicameralism and presentment. The dispute resolution function could be performed by "popular dispute resolution tribunals." These tribunals, staffed by "We the People" would resemble of juries in the early Republic, possessing both the authority to declare that law and to apply it to the particular case. The People's Tribunals would be constituted by legislation authorizing the Party with a majority in the House of Representatives to establish a system of committees in each congressional district.
Although this proposal may seem radical on its surface, this appearance is misleading. The current system of judicial supremacy is thoroughly undemocratic. Given the institutional incentives and political orientation of judges, democratically enacted legal texts have little or no constraining force. Given the radical indeterminacy of the these texts, it follows that "law is politics." The question is whether political law will be democratic or not. The restoration of democracy requires that we take the law away from the courts.
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