Legislative Underwrites

Article — Volume 103, Issue 7

103 Va. L. Rev. 1487
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This Article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites, which reflect more collaborative dimensions of interbranch interaction. This Article begins to fill that void, and in so doing, frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, this Article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels.

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  Volume 103 / Issue 7  

Functionality Screens

By Christopher Buccafusco & Mark A. Lemley
103 Va. L. Rev. 1293

Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

By Tonja Jacobi and Dylan Schweers
103 Va. L. Rev. 1379

Legislative Underwrites

By Ethan J. Leib & James J. Brudney
103 Va. L. Rev. 1487

A Cost-Benefit Analysis–Based Interpretation of Reciprocity Under Clean Air Act Section 115(c)

By Jim Dennison
103 Va. L. Rev. 1561