Abstract
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 ofintransitive 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.
Recommended Citation
Nevin Johnson, Arrow's Theorem and Legislative Intent, 47 Campbell L. Rev. 35 ().