Jane S. Schacter

Accounting for Accountability in Dynamic Statutory Interpretation and Beyond

In Dynamic Statutory Interpretation, William Eskridge argued that concerns about democratic legitimacy ought not to preclude the use of the expansive principles of statutory interpretation that he offered. Among the traditional arguments about democratic legitimacy is the idea that the political accountability of legislatures confers a decisive institutional advantage on legislatures in relation to courts. In this essay, Professor Schacter argues that looking back at Dynamic Statutory Interpretation, a generative force in the literature on statutory construction, offers an opportunity to assess how well scholars have done in addressing the underlying concept of political accountability. She argues that, in addressing the well-known countermajoritarian difficulty, scholars have failed sufficiently to disaggregate the related, yet distinct concepts of accountability, representation and responsiveness. She further claims that scholars have failed to undertake critical empirical analysis of accountability and to consider skeptically the degree and quality of legislative accountability to voters. She concludes that future scholarship ought to pursue these issues aggressively.