ECONOMY

274 the judiciary and the role of law
The PPT approach to studying law denies both of these assumptions. Instead, this
approach embeds the courts in a political system where judges are constrained in
their decision-making; and second, it shows that, except for constitutional cases, the
court does not act last but acts in the middle of a highly interactive process. With
respect to administrative law or statutory interpretation cases, for example, Congress
can always overturn a judicial ruling. This implies that, if judges believe it is costly to
be overturned, they will act strategically so as to avoid being overturned. In short, the
political process constrains the types of decisions judges can make.
Because judges act in the middle of a political process and are not the endpoint,
they must act strategically to get what they want. That is, judges must anticipate how
other political actors will react and must take these reactions into account.
This chapter proceeds as follows: in the second section, we discuss the implications
of our approach for issues in statutory interpretation. The third section discusses the
relationship between political and legal controls of bureaucracy. The fourth section
draws the implications for judicial independence within the larger separation-ofpowers
system.
2 Statutory Interpretation
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Legal scholars view statutory interpretation as a process by which courts discern
the meaning of ambiguous legislative language through various approaches and
techniques (Eskridge, Frickey, and Garrett 2001). The principal disagreement in the
large literature on interpretation is whether and in what circumstances courts ought
to use extrinsic aids beyond the legislative text, such as legislative history and interpretative
canons, to reconstruct the meaning of statutes where this meaning is in dispute
(McCubbins and Rodriguez 2006). Ordinarily, this normative debate is divorced from
positive theories of legislation or of the interpretative process.
By contrast, positive political theory has contributed uniquely to these debates
by articulating a theory of court–Congress relations and statutory interpretation.
Armed with this positive theory, scholars can more fruitfully assess the political
dimensions of interpretation and, as well, the impact of one or another prescription
on the dynamics of legislative politics and judicial performance. One fundamental
insight of positive political theory is that courts act strategically when they interpret
statutes (Ferejohn and Weingast 1992a). In particular, courts are constrained
in their interpretative choices by the possibility that Congress will overturn their
decisions.
Consider the spatial model shown in Figure 15.1, where J is the judge’s most
preferred position, P the president’s, and C Congress’s (we assume, for simplicity,
that C represents the median voter within that body): For the purposes of this model,
we assume that Congress and the president have acted to produce a law. A dispute
over the law’s meaning has ended up before a court and the judge must interpret