The CP’s process is effective at resolving conflicts stemming from circuit splits.

Congress should be very interested in the statutory decisions of courts. Court opinions can significantly shape the meaning of legislation. More fundamentally, they can identify drafting problems that the legislative branch may want to address. In the context of statutory revision, a variety of proposals have been advanced for ways in which courts might more effectively communicate their criticisms and suggestions to legislatures.3 [FOOTNOTE 3 BEGINS] For an excellent review of such mechanisms, especially in the states, see Shirley S. Abrahmson & Robert L. Hughes, Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation, 75 MINN.L.REV. 1045, 1059-81 (1991) (discussing mechanisms for legislative monitoring of judicial opinions that interpret statutes). Then Circuit Judge Ruth Bader Ginsburg and her coauthor Peter Huber have suggested that a “second look at laws” committee be created, and that the Office of Law Revision Counsel be upgraded to assist in “statutory housekeeping.” Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV.L.REV. 1417, 1421 (1987). In addition, Judge Frank M. Coffin has recommended that an entity within the judiciary collate judicial opinions with suggestions for the legislative branch and send them to the Hill, an idea supported by then Chief Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit. Interview with Judge Frank M. Coffin, THIRD BRANCH, June 1982, at 1, 3-7; James. L. Oakes, Grace Notes on ‘Grace Under Pressure,’ 50 OHIO ST. L.J. 701, 714-15 (1989). Judge Wilfred Feinberg has urged the Judicial Conference to “designate a handful of law professors working on a part-time basis as a committee to call attention to ... conflicts [among the circuits].” Wilfred Feinberg, A National Court of Appeals?, 42 BROOK.L.REV. 611, 627 (1976). Justice John Paul Stevens has also pressed for some mechanism so that Congress could resolve intercircuit conflicts. John R. Stevens, Some Thoughts on Judicial Restraint, 66 JUDICATURE 177, 183 (1982) (examining efficiency and appropriateness of congressional role in resolution of intercircuit conflicts in matters of statutory interpretation). These ideas have historical precedents. In 1921, Justice Benjamin Cardozo, borrowing from Roscoe Pound and Jeremy Bentham, recommended the creation of a Ministry of Justice to facilitate law revision. Benjamin N. Cardozo, A Ministry of Justice, 35 HARV.L.REV. 113, 114 (1921) (citing Roscoe Pound, Juristic Problems of National Progress, 22 AM.J. SOC'Y 721, 729-31 (1917) and THE WORKS OF BENTHAM 597-612 (John Bowring ed., Simpkin Marshall 1843)); see also Larry Kramer, “The One-Eyed are Kings”: Improving Congress's Ability to Regulate the Use of Judicial Resources, 54 LAW & CONTEMP. PROBS. 73, 90-97 (1991). In the 1960s, Judge Henry Friendly commented that it “would seem elementary that an agency whose task is to [help] formulate legislation ... should be attached to the legislature.” Henry J. Friendly, The Gap in Lawmaking—Judges Who Can't and Legislatures Who Won't, in BENCHMARKS 62 (Henry J. Friendly ed., 1967). [FOOTNOTE 3 ENDS]

*2190 Four years ago, The Georgetown Law Journal provided a forum to discuss a proposed experiment in “statutory housekeeping,” as then Judge Ruth Bader Ginsburg aptly phrased it.4 That experiment took the form of pilot project of the Governance Institute5 and the U.S. Court of Appeals for the District of Columbia Circuit. It sought to develop routinized means for courts to transmit opinions to Congress—opinions that have interpreted particular statutes and have identified problems for legislative consideration. The project was concerned with congressional unawareness of many such cases and was committed to the view that improved communication between the branches would improve the work of both branches.

*2191 We report here on the project's progress to date. Parts I and II briefly describe the project's history—its origins and development in the judicial and congressional communities. Part III provides an overview of the cases the D.C. Circuit has referred to Congress thus far. As a way of demonstrating the project's usefulness, it classifies those cases and identifies issues of statutory drafting and interpretation that Congress might further consider. Part IV discusses the project's effectiveness and acknowledges challenges yet to be faced.

This report is especially timely because the U.S. Judicial Conference—the policymaking arm of the federal judiciary—has recently recommended that all circuits participate in the project. The experience of the D.C. Circuit and legislative counsel described in this report and the commentaries that follow should be useful as a guide to those circuits that are exploring the nature and extent of their participation. This examination is also intended to inform Congress of the project's course to date, with the objective of continuing discussion as to how it could be made more helpful to the legislative branch.

Briefly stated, the project has provided a neutral means for interbranch communications and has facilitated institutional learning and understanding. With knowledge of the courts' opinions, Congress may respond as it deems appropriate. But as importantly if not more so, the legislative branch has a better appreciation of how courts interpret its work, and the courts have a better sense of how the legislative branch digests its opinions. Thus, having seen how courts apply statutory language to specific contexts, Congress can be more attuned to drafting issues which result in litigation.

Following this report, several individuals with diverse roles in the judiciary and Congress comment on the development and implementation of the project. Along with this project, the commentaries describe the mechanics of creating such an experiment as well as the value of a statutory housekeeping device to both branches and those working within the institutions—be they clerk of court, judge, legislator, or legislative counsel. From the perspective of a clerk of court charged with implementing the project, Mark Langer observes that “the efforts required of court staff ... are minimal”; “[n]evertheless, this modest investment of time supplies a pipeline of pertinent information to Congress that it might not otherwise receive in a direct and timely manner—or that it might not otherwise receive at all.”6 From the vantage point of a judge and a former legislator, Judge James L. Buckley of the United States Court of Appeals for the D.C. Circuit, writes that the project's “virtue is its simplicity.”7 “By its participation,” he observes, “the judiciary is able to accommodate Congress”; testament to the project's merits is the fact that “those in Congress charged with drafting legislation—the [nonpartisan] offices of legislative counsel—are much *2192 in favor of it.”8

Deputy Legislative Counsel, M. Douglass Bellis, who has overseen the project in the House of Representatives concludes:

The greater the communication between the judicial and legislative branches of government, the more the courts and Congress will grow to understand each other and the more the public can examine what its agents are doing on its behalf.... The Governance Institute, to the extent it has helped to provide quality control, can take justifiable pride in its work.9

Offering a Senate perspective, Legislative Counsel Frank Burk comments that the project “has helped stimulate a comprehensive two-year review of the basic rules of legislative drafting” by his office;10 that the office “has developed a drafting manual that compiles the drafting rules and conventions identified during the review,”11 and that cases transmitted under the project are used as teaching devices for beginning staff attorneys.12 The commentaries are thus testament to the ways in which each institution, with differing workways, has benefited from participating in the project.

I. THE PAST AS PROLOGUE

The statutory housekeeping project is a very practical effort to create a channel of communication between the courts and Congress with respect to cases involving statutory interpretation. The project was commenced at the invitation of the D.C. Circuit judicial conference and was prompted by the interest of then Judge Abner J. Mikva, Judge Patricia M. Wald, Judge James L. Buckley, and then Circuit Judge Ruth Bader Ginsburg.13 As a precursor to the development and implementation of the statutory housekeeping project, the Governance Institute conducted an initial study undertaken by Judge Frank M. Coffin and Robert A. Katzmann to evaluate Congress's response to fifteen judicial decisions.14 These decisions identified interpretive problems in legislation, including grammatical constructs15 such as misplaced commas; ambiguous terms and phrases for which courts sometimes explicitly invited congressional clarification; and technical gaps like failing to state which courts had jurisdiction over cases arising under a particular statute.

The study found that Congress was unlikely to clarify certain statutes because it was unaware that the problems existed. Although staff members were generally familiar with major cases and with cases in which a losing party sought *2193 legislative relief, congressional committees responsible for drafting the problematic statutory language were unfamiliar with the relevant court decisions in twelve of the fifteen cases.

In the course of several interviews, it became clear that both branches supported some means—a transmission belt of sorts—to convey relevant judicial opinions to Congress. The task, it seemed, was to create a low-visibility mechanism, preferably without the need for a new committee or other structure within Congress, that would directly transmit some opinions to the appropriate congressional committees. Working with the D.C. Circuit, the Governance Institute aspired to design a mechanism that: (1) would be respectful of the institutional prerogatives of each branch; (2) would not burden either branch; (3) would be technically sound; and (4) would contribute to informed decision-making by the judiciary and Congress. Furthermore, the mechanism was premised on the view that Congress, as the maker of laws, should have the opportunity to have the last word on the meaning of its statutes.16 Thus, with the interest of a number of influential judges and legislative staff, the statutory housekeeping project began to take shape.

II. FORMALIZING THE PROJECT

If the effort was to be launched, it needed the official support of those in authority. Hence began a lengthy series of discussions. Having first determined that the number of opinions should not burden the congressional committees, Governance Institute Distinguished Fellow and former Congressman Robert W. Kastenmeier and Robert A. Katzmann held individual meetings with key participants in the House of Representatives who might be involved in any effort to improve communications between the branches.17 Based on those discussions and others with then Chief Judge Abner J. Mikva of the D.C. Circuit, a system was designed in which the D.C. Circuit's chief staff counsel would send complete opinions without comment to the Speaker, the minority leader, the Parliamentarian, the chairmen and ranking minority members of key committees, the general counsel to the clerk, and the Legislative Counsel.18 The *2194 Legislative Counsel would assume the responsibility of ensuring that the opinions reached the appropriate members and staffs of both parties in the relevant committees and subcommittees. The process did not impinge upon the prerogatives of the legislative branch; Congress would simply be receiving opinions of possible legislative interest.

The concept was well-received in both Congress and the judiciary. In May 1992, the House of Representatives launched the project on statutory housekeeping with a joint announcement of then Speaker Thomas Foley, then Majority Leader Richard A. Gephardt, and then Republican Leader Robert H. Michel. Commenting on the utility of the project, they remarked, “We welcome this Court's experimental initiative.... We believe that the program would be most useful if it were applied to all circuits and both houses of Congress.”19 Following discussions with the Senate Legislative Counsel and the Senate Legal Counsel, the Governance Institute secured the participation of the Senate. In a September 1992 letter to the Legislative Counsel, then Majority Leader George Mitchell, then Republican Leader Robert Dole, and then President Pro Tempore Robert C. Byrd stated:

This project offers great promise as a thoughtful and productive step in improving communications between the judiciary and the Congress to the benefit of both branches.... [The] hope is that the identification and transmittal of such opinions to the appropriate committees will furnish information helpful to Congress's efforts to improve its communication of legislative intent in statutory drafting.20

Chief Justice William H. Rehnquist pointed to the Governance Institute project as an effort to improve relations between the branches by “making it easier for judges to alert legislators to statutory drafting problems identified in the course of adjudication.”21 Then Chief Judge Mikva also commented:

I'm very enthusiastic about this project. When I was in Congress, I found out by accident that courts sometimes had problems interpreting the laws. Both Congress and the courts had the same interests at heart, but sometimes spoke different languages. This project encourages a neutral communication between the courts and Congress without breaking down the legitimate separation that exists between the branches.22

*2195 The Joint Committee on the Organization of Congress endorsed the enterprise as well.23 To date, the D.C. Circuit, through its Clerk of Court Mark J. Langer, has been most attentive to the implementation of the project. Other circuits—the First, Third, Seventh, and Tenth—have also expressed interest in the initiative.24 Moreover, the Judicial Conference of the United States adopted the Committee on Long Range Planning's recommendation that “[a]ll courts of appeals should be encouraged to participate in the pilot project.”25

III. THE CASES: A CLASSIFICATION AND ANALYSIS

The experience of the D.C. Circuit in implementing the project in its early phase is instructive because it demonstrates the kinds of cases suitable for referral to Congress. Project participants agreed to rely on the following classifications to select appropriate cases:

1. Grammatical/Drafting Mistakes: statutes containing errors in grammar, syntax, punctuation, or spelling;

2. Ambiguities: statutory provisions that are susceptible to more than one meaning and for which legislative history provides no direction or no clear direction as to the intended meaning;

3. Gaps: cases in which the court is required to fill a gap in an effective date or other similar gap.26

Not surprisingly, given these classifications, the perceived statutory problems routed for legislative review have been mostly technical and noncontroversial. The committees receiving opinions are free to use them in any way they deem *2196 appropriate, including not responding at all. Ideally, the project encourages Congress to regard the opinions as another source of information to consider in doing its work.

Thirty-seven cases referred by the D.C. Circuit to Congress suggest that the most prevalent problem is ambiguity in legislative provisions. The sections that follow briefly describe some of the cases under each classification and identify the legislative responses Congress might consider in light of the court's interpretation of various statutory provisions. The purpose in so doing is to show how the project can be used to stimulate review and rethinking as the need arises. It is in the context of a discussion of specific cases that such utility can be demonstrated.

A. GRAMMATICAL OR DRAFTING MISTAKES

In the period ending March 31, 1997, the D.C. Circuit had referred only two cases dealing with grammatical or drafting errors. First, in United States v. Michael,27 the court faced the issue of whether references to cocaine base in the statutory language authorized sentence enhancement or established a separate crime for possession of cocaine base.28 The statute in pertinent part reads: “Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000....”29 The question was whether the words “for the possession of ... cocaine base” modified the verb “convicted,” thus suggesting that Congress intended to establish a separate crime for possession of cocaine base.

On rehearing, the court accepted this reading of the provision because interpreting the measure as a sentence enhancement would have taken the issue away from the jury. The court was unwilling to allow that result in the absence of any supporting legislative history.30 If Congress disagrees with this interpretation, it could modify the statute. Whether the problem stems from an easily remedied grammatical error, or an ambiguity implicating broader policy concerns (and thus is more difficult to resolve), may affect whether and how Congress deals with the matter.

The other case falling within this category is Cheney Railroad Co. v. Railroad Retirement Board.31 The conflict arose from the reorganization and codification *2197 of the Interstate Commerce Act32 and related statutes in 1978. The drafting error identified by the court was that references in the Railroad Retirement Act33 and Railroad Unemployment Insurance Act34 to “part I of the Interstate Commerce Act” were erroneously replaced with “subchapter I of Chapter 105 of title 49,” the latter phrase being construed by the Board in this case.35 The court held that Congress intended the Codification Act merely to reorganize, not to substantively change, the law.36

As Douglass Bellis, Deputy Legislative Counsel to the House of Representatives, cogently explains in his commentary that follows,37 the problem the court identified was not in the actual law but in the compilation of the law in the United States Code. This case shows how the project contributes to resolving such statutory drafting glitches: the appropriate government body or official is made aware of the problem in order to address or correct it—in this case, the Law Revision Counsel was contacted.38 Some cases may require a technical amendment to clarify statutory cross-references. In fact, in Cheney Railroad, a subsequent amendment virtually eliminated the possibility of future legal conflicts over the compilation error.39

B. AMBIGUITIES

Ambiguity can be inadvertent or deliberate (perhaps as a means of securing a majority coalition to enact the law). The project is likely to be most useful in bringing to legislative attention cases involving unintentional ambiguity. Courts are confronted with ambiguities that principally derive from two different sources—the particular terms or phrases of a statutory provision, or the need to interpret related statutes. The former has generated the majority of cases that the D.C. Circuit has referred to Congress.