Congressional Polarization Due to Maximizing Political Satisfaction: Why Elhauge’s Current Enactable Preferences Default Rule Fails to Avoid the Congressional Deadlock and Polarization that Stems from Expansionist Statutory Interpretation

By Timothy J. Droske[*]

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I.  Introduction

In their recent article in the Northwestern University Law Review,[1] Daniel B. Rodriguez and Barry R. Weingast show that expansionist statutory interpretations, like those promoted by dynamic theorists such as Cass Sunnstein, William Eskridge, and Jonathan Macey, have resulted in congressional polarization and an inability for Congress to pass landmark, progressive legislation.[2]  This essay explores whether Rodriguez and Weingast’s warning to dynamic theorists as to the unforeseen consequences of judicial expansionist statutory interpretation also applies to Professor Einer Elhauge’s theory of statutory interpretation, which is not directly addressed in Rodriguez and Weingast’s article.[3]  While dynamic theories generally urge courts to interpret statutes “in light of their present societal, political, and legal context,”[4] Elhauge’s theory is unique in that its focus is on the political maximization of the enacting governmental polity.[5]  Counterintuitively, Elhauge argues that judges can maximize the political preferences of the enacting governmental polity by interpreting statutory ambiguity in accord with the “enactable preferences” of the current government.[6]  Elhauge also maintains that his theory is much more limited in scope than other dynamic theories and cabins undesirable judicial discretion, since the theory only applies in cases of statutory ambiguity and only where current enactable preferences are revealed through official action.[7]

This Essay analyzes the distinctions that Elhauge draws between his theory and those of other dynamic theorists, as well as the limitations he places on his “current enactable preferences” default rules, to show that Elhauge’s theory fails to maximize the political satisfaction of moderate legislators.  Given that failure, this Essay argues that the congressional deadlock and polarization described by Rodriguez and Weingast will persist under Elhauge’s default rules.

Martin Luther King Day at Northwestern Law

All classes are cancelled Monday, January 21, in celebration of Martin Luther King Day.  Instead,  Northwestern Law features a number of discussions and presentations related to segregation.   The day’s events kick off with a mock Supreme Court oral argument of Parents Involved in Community Schools v. Seattle School District, which involved a challenge by parents to the use of race-based criteria in apportioning students to public schools.  __ U.S. ___, 127 S.Ct. 2738 (2007) (link).   The Court’s plurality decision held that the Seattle and Jefferson County public school systems had used racial classifications in an unconstitutional manner. 

Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell

By Perry Dane[*]

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The courts, and in particular the Supreme Court, have made a mess of the doctrine of jurisdiction and the idea of jurisdictionality.  More specifically, they have made a mess of the relationship between time limits and the idea of jurisdictionality.  That much is clear.  The more interesting question, though, is why.  The answer to that question has profound and deeply evocative jurisprudential implications.

Bowles v. Russell[1] was the Supreme Court’s most recent foray into the problem of jurisdictionality.  Professor Scott Dodson’s short essay on the case[2] thoughtfully identifies some of the majority opinion’s analytic defects and practical pitfalls.  He argues that the Court’s majority in Bowles was wrong to hold that the particular time limit contained in 28 U.S.C. § 2107(c) is jurisdictional.  I am not sure I agree, though that is not the main thrust of my own comments here.  More broadly, Professor Dodson acutely and usefully reminds all of us that time limits can be taken seriously, and even interpreted literally or peremptorily, without necessarily being labeled jurisdictional.  Here I agree completely, but would add, importantly, that time limits can also be jurisdictional without being interpreted literally and peremptorily, and that the court’s failure to see this is evocative of something odd and melancholy in our current legal culture.

Much of my argument here appeared in an article called Jurisdictionality, Time, and the Legal Imagination that I published long before Bowles was decided.[3]  I am not surprised that the Justices did not heed, and probably did not read, that article.  I am intrigued, though, why they did not get the key to the jurisdictionality problem right on their own when the basic outline of the problem (though, to be sure, not the solution in any particular instance) is really so simple.

The Jurisdictional Time Limit for an Appeal: The Worst Kind of Deadline—Except for All Others*

By E. King Poor[**]

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“In order to know what it is, we must know what has been, and what it tends to become.” —Oliver Wendell Holmes[***]

Notices of appeal have traveled to courthouses in many ways over the past century and a half: horse-drawn carriage, steam locomotive, gas-powered truck, propeller and jet planes, and now, in some districts, by electronic case filing.  But whatever the mode of delivery, there has been remarkable uniformity as to how federal judges have treated notices of appeal when they have arrived past the deadline set by Congress.  This time limit has always been deemed to be “jurisdictional,” meaning that neither the parties nor the trial judge could change it and the appellate court could raise it on its own.  While American law has changed in countless ways since the mid-nineteenth century, the fundamental nature of time limits has not, nor has the judicial treatment of the time for an appeal.  So the question arises, is this longstanding treatment of the time for an appeal simply the result of hundreds of judges unthinkingly following precedent?  Or is there is something else going on here?  There is something else.  And this Essay explains what that is and why.  In particular, practical experience teaches that the judicial system as a whole works far better—with greater stability and overall fairness—when the time for an appeal cannot be manipulated by the parties or overridden by the trial court and thus is treated as jurisdictional.

This Essay responds to those of Professors Scott Dodson and Elizabeth Chamblee Burch.[1]  Each of their essays criticizes the Supreme Court’s recent decision in Bowles v. Russell, which held that the time for filing an appeal in civil cases under 28 U.S.C. § 2107(c) is jurisdictional.[2]  Professor Dodson argues that Bowles is only half right because, though the statutory deadline to file an appeal should not be deemed “jurisdictional,” it should still be considered “mandatory” in the sense that—if timely raised—it will be enforced without resort to equitable exceptions.[3]  Professor Burch, on the other hand, maintains that Professor Dodson is only half right because Bowles is all wrong.  She argues that the statutory deadline for an appeal is neither mandatory nor jurisdictional, and that it should be malleable based on general equitable exceptions whether or not it is timely invoked.[4]

This Essay looks at the issue differently.  It begins with the recognition that thousands of federal court decisions over a century and a half have unequivocally held that the time for filing an appeal is jurisdictional and that Congress has never intervened to change that view.  As such, close to 160 years of case law could not have been silently swept away by dicta in Supreme Court decisions over the past three years dealing with other deadlines, as Professors Dodson and Burch suggest.

The Essay next examines the reasons behind this history.  While much of the criticism of Bowles has revolved around theoretical arguments about the precise meaning of the word “jurisdiction” or the particular facts of the case itself, the decisions holding that a timely appeal is jurisdictional have persisted for practical reasons.  To understand these reasons, several hypothetical situations are presented.  These illustrate that ignoring an unambiguous time limit set by statute in the name of “flexibility” or “equity” is hardly innocuous and actually causes uncertainty and confusion as to when a judgment is final, invites wasted resources in sorting out whether exceptions apply, and undermines the reliability and evenhandedness that are essential for a system of justice.  As a result, there are sound reasons why generations of federal judges have consistently treated this deadline as jurisdictional.  Thus, Bowles is a reaffirmation of this long line of authority and was correctly decided.