Congressional Silence and the Statutory Interpretation Game

Abstract

This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.

Keywords: statutory interpretation, law and economics, transaction costs, model, spatial model, congressional silence, game theory, pivotal politics, positive political theory, congressional override, legislative override

JEL Classification: H1, H11