Soft law: lessons from congressional practice.

Author:Gersen, Jacob E.

INTRODUCTION I. SOFT LEGISLATIVE LAW A. Hard Statutes B. Soft Statutes C. Ambiguous or Excluded Categories 1. Procedural rules 2. Resolutions given legal effect by prior statutes 3. Bill introduction and other internal actions and statements 4. Ambiguously worded statutes 5. Hortatory statutes 6. Substantively unconstitutional statutes II. HOW DOES SOFT LAW AFFECT BEHAVIOR? A. Soft Law as a Strategic Instrument 1. How law conveys information 2. Theories of communication a. Signaling theories b. Cheap-talk theories B. Soft Law as an Epistemic Instrument C. Soft Law Versus Hard Law: Costs and Benefits 1. Advantages of soft law 2. Disadvantages of soft law III. APPLICATIONS A. The Public B. The President 1. Constitutional authority 2. Soft statutes as political support C. Agencies IV. IMPLICATIONS FOR COURTS A. Statutory Interpretation B. Constitutional Interpretation C. Constitutional Law of Soft Statutes V. A GENERAL THEORY OF SOFT LAW A. Law as Communication Generalized B. Dicta C. Constitutional Law D. International Law CONCLUSION INTRODUCTION

Soft law has taken the legal academy by storm. In constitutional law, a deluge of recent scholarship argues that the "small c" constitution of unwritten legal norms deserves as much attention as the "big C" written Constitution. (1) Scholars have devoted increasing attention to "the constitution outside the constitution"--extraconstitutional or subconstitutional norms, especially those developed by nonjudicial agents such as legislatures.

In international law, too, scholars have turned their attention from the traditional manifestations of international law--treaties, judicial opinions, government announcements--to what they have also called soft law. (2) Soft international law includes nonbinding declarations such as the Universal Declaration of Human Rights and General Assembly resolutions. Despite their lack of formal legal status, these materials can ultimately have real effect--by working their way into customary international law or by providing the framework for informal interstate cooperation. (3) Soft law in international relations, like small-c constitutional law, consists of norms that affect the behavior of agents, even though the norms do not have the status of formal law.

Or consider the recent controversy about presidential signing statements. (4) When Congress presents a bill to the President for signature, the President sometimes issues a signing statement that interprets some of the bill's provisions. (5) Signing statements are not binding law, but many people believe that they do, or should, influence courts and agencies when these bodies interpret statutes. If signing statements affect the beliefs of private parties about how the President will execute the law, signing statements might affect private behavior. Thus, signing statements, although lacking formal legal power, could have an effect similar to that of the other forms of soft law.

The controversy about signing statements mirrors an older dispute about other soft-law practices in the executive branch. Agencies issue statements of "best practices" and policy manuals that may induce voluntary compliance by regulated parties. (6) Critics complain that administrative agencies produce too much policy through informal and nonbinding guidance documents and policy statements in order to avoid costs associated with formal mechanisms like notice and comment rulemaking or formal adjudication. (7) For example, if a statute requires that wild animals be contained by fences that are "structurally sound," (8) an agency might use notice and comment proceedings to issue a formal rule interpreting the phrase "structurally sound" to require a fence taller than eight feet. Alternatively, the agency might issue a guidance document stating that the agency understands the statute to so require and pronouncing that the agency intends to enforce the statute only against owners with fences less than eight feet high. This statement has no formal legal force; the agency must still defend its interpretation of the statute in an enforcement proceeding or litigation. Nonetheless, many regulated parties will simply construct a fence to comply.

To the private-law scholar, soft law might not seem as exotic as it does in these other fields. A judicial opinion contains a holding that has binding legal effect and reasoning that, in the case of some higher courts, might also have binding effect. But generally speaking, the reasoning in judicial opinions is only "dicta": it does not have binding force. And yet clearly dicta have a great deal of importance, influencing the decision making of subsequent courts (9) and hence people who bring their behavior in line with predictions of how courts will act.

As a final example, also from private law, consider the ubiquitous presence of nonbinding instruments in commercial relations. A letter of intent, for example, signals that two parties have an interest in further negotiations leading up to a binding contract but rarely has legal force itself. (10) It is clear that such "soft contracts" have commercial importance and affect the behavior of the parties that enter them. (11)

The academic literatures on these topics have different concerns, yet the themes are similar. Soft law refers to statements by lawmaking authorities that do not have the force of law (most often because they do not comply with relevant formalities or for other reasons are not regarded as legally binding (12)), but nonetheless affect the behavior of others either (1) because others take the statements as credible expressions of policy judgments or intentions that, at some later point, might be embodied in formally binding law and reflected in the coercive actions of executive agents, or (2) because the statements provide epistemic guidance about how the authorities see the world. (13) Individuals, governments, states, and other agents use soft law in order to enter commitments and influence behavior where legal mechanisms are regarded as undesirable.

Against this backdrop, it is a puzzle that no parallel literature has emerged (14) One does not have to look in the field of legislation and legislative process. hard to find a similar form of soft law: the congressional resolution. Congressional resolutions--whether concurrent or one-house--generally have no formal legal effect. (15) Periodically, proposals surface to pay more attention to the resolution as a mechanism for influencing statutory interpretation, (16) foreign policy, (17) or some other external matter. Yet the soft statute has received little attention in scholarly work on legislation. (18) The conventional wisdom is that such measures lack importance because they do not create binding legal obligations. (19) They are cheap and often happy talk by legislatures, commending military officers for good service or sports teams for winning championships.

In fact, many congressional resolutions are very serious: they assert controversial foreign policy judgments, urge the President to intervene in humanitarian crises or to avoid a military conflict, criticize allies and enemies, forecast plans for taxation and regulation, send signals to regulatory agencies about Congress's expectations, criticize the President's interpretations of executive power, advance interpretations of constitutional provisions and statutes, encourage state and local governments to address policy problems, identify public health threats that need funding, and much more. (20) Statutory soft law deserves more attention than it has received, especially in light of the large cognate literatures that examine the workings of soft law in other fields. In the course of analyzing congressional resolutions and other forms of legislative soft law--including hortatory statutes--we advance a general theory that explains the attractiveness of soft law, its advantages and disadvantages, and its place in our constitutional order. We show that soft public law is preferable to hard public law in identifiable cases and contexts.

The congressional resolution is essentially a "soft statute"--a device for communicating the policy views and intentions of one or both houses of Congress. Legislative soft law communicates congressional intentions more accurately and cheaply than does a regular statute, which will usually reflect the views of the President as well. Legislative soft law communicates the views of a chamber or the Congress more accurately than do statements of individual legislators, whose views will often diverge from that of the majority.

These communications can influence the behavior of the public and of other political institutions through three main mechanisms. First, a congressional communication affects people's beliefs about how Congress will (formally) regulate in the future, to the extent that it credibly reveals the political preferences of Congress (or its members or a substantial coalition of its members or its leadership, etc.). A soft statute thus anticipates a hard statute, but when the target audience reacts appropriately to the soft statute, the hard statute may become unnecessary. Second, a congressional communication may have a purely epistemic effect. Information about Congress's views might cause people to change their beliefs about the state of the world. (21) Third, in some settings other institutions that generate formal law take legislative views as an input. Agencies, courts, and the President regularly incorporate legislative views as one of many factors in the construction of binding policy.

Part I defines soft law and distinguishes it from related concepts. Part II explains how legislative soft law affects behavior. Part III discusses applications of the theory to the public, the President, and administrative agencies. Part IV discusses the implications of the theory for courts, focusing on statutory interpretation and constitutional adjudication. Part V...

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