A mechanism for 'statutory housekeeping': appellate courts working with Congress.

• Author: Katzmann, Robert A.

This year the bipartisan leadership of the House and Senate Judiciary Committees called for the United States Courts of Appeals' widespread participation in a decades-old project to let Congress know about possible technical flaws in statutes. (1) Its chief purpose is not to promote remedial legislation but rather to provide legislators and their bill-drafting staffs information about how appellate courts interpret the legislative product. The project is noteworthy as an approach to the long-standing search for practical ways of alerting Congress to drafting problems in judicial opinions and as an example of legislative-judicial cooperation and communication.

1. SOME BACKGROUND

   Over forty years ago, Judge Henry J. Friendly of the Second Circuit, commenting on the importance of statutory law, bemoaned "the problems posed by defective draftsmanship," especially m uncontroverslal legislation. (2) He described "the occasional statute in which the legislature has succeeded in literally saying something it probably did not mean," and noted that "even the best draftsman is likely to have experienced the occasional shock of finding that what he wrote was not at all what he meant." (3) He also gave examples of ambiguous statutory language (4) and attributed these problems to the legislative time crunch, which caused "neglect of the undramatic type of legislative activity" described in his article. (5) Thirty-four years later, another circuit judge, James Buckley of the D.C. Circuit, who had served in the Senate in the 1970s, recalled that, in Congress, "[w]ith time often the enemy, mistakes--problems of grammar, syntax, and punctuation--are made in the drafting of statutes and affect the meaning of legislation." (6)

   Judge Friendly's remedy for this problem was a legislative commission along the lines of the "ministry of justice" that Roscoe Pound proposed in 1917 and Benjamin Cardozo proposed four years later (with antecedents running back to early nineteenth century England): a small disinterested body of public and private citizens with legislative expertise to review statutes and call attention to their defects. (7) The 1970s, 1980s, and 1990s saw other proposals for informing Congress about possible defects in statutes, including a "'second look at laws' committee" in Congress; a committee in the judiciary to sift through judicial opinions for references to defects; (8) and two judicial branch proposals that "Congress ... consider a 'checklist' for legislative staff to use in reviewing proposed legislation for technical problems," such as the need for a statute of limitations, definition of key terms, severability, and whether retroactive applicability is intended. (9)

   Another way of treating these problems was a practical experiment, designed almost twenty years ago by the Governance Institute, (10) a small Washington, D.C., think tank. Through this project for "statutory housekeeping," (11) in Justice Ruth Bader Ginsburg's apt phrase, courts of appeals identify opinions that point out possible technical problems in statutes and send those opinions to Congress for its information and whatever action it wishes to take.

2. HOW THE PROJECT DEVELOPED

   In 1988, the D.C. Circuit--in particular Judge Buckley, Judge Ruth Ginsburg, Chief Judge Patricia Wald, and Judge Abner Mikva--endorsed an inquiry about the fate in Congress of judicial opinions that flag problems in grammar, apparent "glitches," ambiguous terminology, and omission of key details, such as effective dates. (12) They invited Judge Frank Coffin and author Katzmann to analyze what happened in Congress after that court issued statutory decisions with such opinions. Judge Coffin, himself a former legislator, was in 1988 chairman of the United States Judicial Conference's committee that seeks to promote effective judicial-legislative relations. (13) Katzmann was then a Georgetown government and law professor, a Brookings Institution fellow, and president of the Governance Institute. (14) After identifying a small body of relevant opinions, Coffin and Katzmann explored legislative awareness of these opinions. They learned that committee staff were not much plugged into judicial opinions concerning technical aspects of the statutes under the committee's jurisdiction, even if they knew about decisions on broad, policy-oriented issues of statutory interpretation or decisions that a losing party with clout had asked Congress to undo. (15)

   Working with legislators and their staffs, Coffin and Katzmann, with the counsel of Governance Institute Distinguished Fellow and former House member Robert W. Kastenmeier, developed a pilot project in which the D.C. Circuit's court of appeals would transmit its relevant statutory opinions to the House of Representatives. (16) Chief Justice Rehnquist endorsed the pilot project in 1993. (17) Two years later the Judicial Conference recommended that "[a]ll courts of appeals should be encouraged to participate in the pilot project to identify technical deficiencies in statutory law and inform Congress of same." (18)

   By the early part of this decade, more than half the courts of appeals had transmitted opinions to Congress. Participation declined, however, because the project had not been fully institutionalized within the judiciary. For one thing, there was no method in...