Beyond Neglect and Disrespect: Legislatures in Legal Scholarship

Abstract

This essay discusses legal scholarship about legislatures and legislation. Legislatures have long been both the most neglected and most disrespected branch in legal scholarship. The essay explores whether and how legal scholarship can advance beyond this neglect and disrespect of legislatures.

In moving beyond neglect, the essay argues that there is increasing interest in legislatures, legislation, and legisprudence in legal scholarship. It aims to advance this scholarship by highlighting recent developments, and offering some thoughts about avenues for future development. In addition to calling for more global and comparative perspectives, more inter-disciplinary fertilization, and more empirical work, it highlights two substantive areas for future development: legislatures and legislation in the age of artificial intelligence; and legislatures and legislation in the age of populism.

In moving beyond disrespect, the essay explores legal scholarship’s perception of legislatures. It argues that European scholarship demonstrates a shift from the notion of legislatures as sausage-making factories to the idea of rational lawmakers, whereas in American scholarship this development is facing significant challenges. It examines reasons for these challenges, arguing that they are largely a result of American legal culture and its ingrained cynicism towards legislatures. It concludes with discussing the ramifications of the perceptions about legislatures.

Note: This is the original author's version. The final version will be published as: Beyond Neglect and Disrespect: Legislatures in Legal Scholarship, in Handbook of Parliamentary Studies: Interdisciplinary Approaches to Legislatures (Cyril Benoît & Olivier Rozenberg eds., forthcoming)

Keywords: legislatures, legislation, legisprudence, legal scholarship, legislative studies, rational lawmaking, procedural rationality, due process of lawmaking, judicial review of the legislative process, legal culture, comparative law.