Boston University School of Law
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The Most Disparaged Branch: The Role of Congress in the 21st Century

November 14 &15, 2008

Conference Panel descriptions

I. Is Congress "The Broken Branch"?

Many observers have disparaged Congress as "the broken branch"or portrayed it as an increasingly dysfunctional and ineffective institution. What about Congress is broken? What are the most feasible and desirable proposals for repairing and improving Congress to make it a more effective institution?

II. Is Legislation an Unprincipled, Incoherent, Undignified Mess?

Just as Congress is viewed as "the broken branch," legislation itself is commonly disparaged as an unprincipled, incoherent, and undignified mess. Are there other plausible pictures of legislation that portray it as more defensible? A new journal, "Legisprudence," "aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory." What are the aspirations and prospects of "legisprudence"? What has it contributed, and might it contribute, to the improvement of legislation?

III. Is Congress Capable of Conscientious, Responsible Constitutional Interpretation?

Has aggressive judicial review so stunted Congress' capacities to engage in conscientious, responsible constitutional interpretation that courts should no longer defer to Congress? Indeed, can widespread disparagement of Congress's capacities for constitutional interpretation readily coexist with judicial deference to Congress? Or does it lead to more aggressive judicial review (as may have been the case with the Rehnquist Court and perhaps now the Roberts Court)? What is the most defensible conception of Congress' responsibilities with respect to constitutional interpretation and of its capacities to carry out those responsibilities?

IV. Beyond Legislatures: Social Movements, Social Change, and the Possibilities of Demosprudence

Scholars commonly question whether courts can bring about social change, perhaps implicitly assuming that legislatures can do so. But is Congress capable of bringing about social change? Some scholars have argued for shifting the focus beyond legislatures (or "electocracy") to reviving the role of the people, especially mobilized constituencies, through social movements in pursuing social change. Along these lines, Lani Guinier and Gerald Torres have begun to develop a "demosprudence" of social movements. What are the possibilities and prospects of demosprudence?

V. Toward a More Democratic Congress?

Scholars frequently fret about how undemocratic courts are, perhaps implicitly assuming that legislatures are adequately or appropriately democratic. But how democratic is Congress? And what is the best theory of how democratic Congress should be? Are there plausible and attractive changes in institutional design that might make it more appropriately and defensibly democratic.

VI. Toward a More Responsible Congress?

How responsible (as distinguished from responsive) is the Congress? What is the best theory of the democratic responsibility of Congress? Are there plausible and desirable reforms that might make Congress more responsible? Vis-a-vis the President? Vis-a-vis the courts? Vis-a-vis the people themselves? Do arguments for a more responsible Congress presuppose realistic or feasible conceptions of how Congress operates and is likely to operate?

>VII. Congress in Comparative Perspective

Do legislatures in other countries suffer disparagement similar to that of Congress? What about state legislatures within the United States? Do these other legislatures have features that make them more democratic? More effective? More responsible? What can we learn about improving Congress and legislation in the 21st century through comparative inquiry?

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