Lost in Translation: Social Choice Theory is Misapplied Against Legislative Intent

Abstract

Several prominent scholars use results from social choice theory to conclude that legislative intent is meaningless. We disagree. We support our argument by showing that the conclusions in question are based on misapplications of the theory. Some of the conclusions in question are based on Kenneth Arrow's famous possibility theorem. We identify a substantial chasm between what Arrow proves and what others claim in his name. Other conclusions come from a failure to realize that applying social choice theory to questions of legislative intent entails accepting assumptions such as legislators are omniscient and legislators have infinite resources for changing law and policy. We demonstrate that adding more realistic assumptions to models of social choice theory yields very different theoretical results - including ones that allow meaningful inferences about legislative intent. In all of the cases we describe, important aspects of social choice theory were lost in the translation from abstract formalisms to real political and legal domains. When properly understood, social choice theory is insufficient to negate legislative intent.

Keywords: Statutory interpretation, legislative intent, general possibility theorem, game theory

JEL Classification: C70, C71, D71, H10, K00