William & Mary Law Review


How would Congress act in a world without judicial review? Can
lawmakers be trusted to police themselves? This Article examines
Congress’s capacity and incentives to enforce upon itself “the law of
congressional lawmaking”—a largely overlooked body of law that is
completely insulated from judicial enforcement. The Article explores
the political safeguards that may motivate lawmakers to engage in
self-policing and rule-following behavior. It identifies the major
political safeguards that can be garnered from the relevant legal,
political science, political economy, and social psychology scholarship,
and evaluates each safeguard by drawing on a combination of
theoretical, empirical, and descriptive studies about Congress. The
Article’s main argument is that the political safeguards that scholars
and judges commonly rely upon to constrain legislative behavior
actually motivate lawmakers to be lawbreakers.

In addition to providing insights about Congress’s behavior in the
absence of judicial review, this Article’s examination contributes to
the debate about judicial review of the legislative process, the general
debate on whether political safeguards reduce the need for judicial
review, and the burgeoning new scholarship about legislative rules.