Nevin Johnson

Recent innovations in the group agency literature have led legal theorists to endeavor to apply insights from that literature to explain the nature of legislative intent. This paper argues that doing so is mistaken (at least in the first instance). Instead, this paper argues that a proper institutional focus reveals that legislatures as group entities are (radically) distinct from their membership (and their membership’s intentions), making legislatures very different from the type of groups often studied by the group agency literature. Focusing on the United States Congress, this paper sets out to show how there are nonetheless sufficient resources within the constitutive rules that define Congress as an institution to vindicate the idea of (a more-than-minimal) legislative intent.

Scott Shapiro’s Legality argues the positivist Planning Theory of law meets the anti-positivist challenge posed by the argument from theoretical disagreements about law in Ronald Dworkin’s Law’s Empire. Legality equates theoretical disagreements with what Shapiro calls meta-interpretive disagreements, and then offers a legal theory of meta-interpretation that purportedly accounts for the existence of meta-interpretive disagreements by showing how it is rational or intelligible for legal actors to have such disagreements. This paper argues Legality misconstrues Law’s Empire. The true challenge of ATD was to provide a theory of law that would vindicate the judgment that law is discovered in cases of theoretical disagreements, rather than made. Legality sees the challenge of Law’s Empire to be to show how it is rational or intelligible for legal actors to have theoretical disagreements, which is different from showing how there really is pre-existing law to be found in cases of theoretical disagreements. So the challenge Legality addresses is circumscribed. But Legality does not even succeed at addressing its own more circumscribed challenge, because, under the Planning Theory of meta-interpretation, legal actors are mistaken to think they are finding law in cases of theoretical disagreements.

A number of prominent legal and political theorists have argued, on the basis of Kenneth Arrow's "impossibility" theorem, that the concept of legislative intent is irredeemably problematic. These Arrow-inspired intent skeptics most significantly argue that the presence of intransitive legislative preferences (cycling) means there is no such thing as the "will of the majority" and hence no such thing as a coherent legislative intent. Legislative outcomes, not being attributable to the will of the majority, are instead the result of things like agenda control. Other theorists defend legislative intent against these challenges, tending to focus on contingent legislative characteristics that make cycling unlikely or unproblematic. I argue that the literature has simultaneously under-reacted and over-reacted to the skeptical Arrovian arguments. The literature has missed the most fundamental reason the Arrovian arguments are mistaken in concluding that the concept of legislative intent is incoherent; this fundamental reason centers on the crucial distinction between preferences and intentions. But, in its quick dismissal of the Arrovian arguments, the literature has also overlooked the insight that Arrow does indeed render problematic the most popular versions of the "counterfactual" test for legislative intent, which accordingly must (and can) be reimagined in light of Arrow.