Why do unelected federal judges have so much power to make policy
in the United States? Why were federal judges able to thwart
apparent legislative victories won by labor organizations in the
Lochner era? Most scholars who have addressed such questions assume
that the answer lies in the judiciary's constitutionally guaranteed
independence, and thus worry that insulated judges threaten
democracy when they stray from baseline positions chosen by
legislators. This book argues for a fundamental shift in the way
scholars think about judicial policy-making. Scholars need to
notice that legislators also empower judges to make policy as a
means of escaping accountability. This study of legislative
deference to the courts offers a dramatic reinterpretation of the
history of twentieth-century labor law and shows how attention to
legislative deferrals can help scholars to address vexing questions
about the consequences of judicial power in a democracy.
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