It’s seen as response to a referral which solves

Over the years, several proposals have been made to facilitate statutory revision.232 Justice Ginsburg and her coauthor Peter Huber recommended that a “second look at laws” committee be created, and that the Office of Law Revision Counsel, which has had a ministerial role of correcting citations, assist in “statutory housekeeping.”233 Judge Frank M. Coffin urged that a unit within the judiciary collate and sift judicial opinions with suggestions for the legislative branch and send them to Congress.234 Then-Chief Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit seconded the proposal.235 Judge Wilfred Feinberg called for the Judicial Conference to “designate a handful of law professors working on a part-time basis as *687 a committee to call attention to . . . conflicts [among the circuits].”236 Justice John Paul Stevens suggested that Congress create a legislative mechanism to resolve intercircuit conflicts.237

These thoughts have a distinguished lineage. In 1921, Benjamin Cardozo, then an associate judge on the New York Court of Appeals, drawing upon Roscoe Pound and Jeremy Bentham, recommended the creation of ministries of justice to facilitate law revision.238 In the early 1960s, Judge Friendly stated that “[i]t would seem elementary that an agency whose task is to [help] formulate legislation . . . should be attached to the legislature.”239

An approach that promotes improved drafting and may also lead to statutory revision is a practical effort, designed over twenty years ago by the Governance Institute.240 Through this project of “statutory housekeeping”241--in Justice Ginsburg's apt phrase--courts of appeals send opinions that identify possible technical problems in statutes to Congress for its information and whatever action it wishes to take.242 The effort informs those who draft bills of the technical problems that judges identify in opinions applying statutes.

The project began in 1988 when some judges of the U.S. Court of Appeals for the D.C. Circuit invited Judge Frank Coffin, then chair of the Judicial Conference's Judicial Branch Committee, and me,243 to analyze what happened in Congress after the courts issued statutory decisions that referred to problems in grammar, apparent “glitches,” ambiguous terminology, and omissions of key details, such as effective *688 dates.244 After identifying a small body of relevant opinions, with the aid of the D.C. Circuit judges, we assessed legislative awareness of these opinions. We discovered that committee staff did not know about judicial opinions concerning technical aspects of the statutes under the committee's jurisdiction, although they knew about decisions on broad, policy-oriented issues of statutory interpretation or decisions that a losing party with influence had asked Congress to reverse.245

Working with legislators and their staffs, we--along with the counsel of Governance Institute Distinguished Fellow and former House member Robert W. Kastenmeier--conceived of a pilot project, whereby the D.C. Circuit Court of Appeals would transmit its relevant statutory opinions to the House of Representatives.246 Chief Justice Rehnquist backed the pilot project in 1993,247 and two years later the Judicial Conference recommended that all courts of appeals participate.248

In the early 2000s, more than half of the courts of appeals had transmitted opinions to Congress. Participation declined, however, because the project had not been fully institutionalized within the judiciary. In May 2006, the legislative counsel in both houses of Congress asked the Governance Institute, led by Russell Wheeler, to revitalize the project.249 The result was a June 2007 memorandum *689 from the Director of the Administrative Office of the U.S. Courts, James Duff, and from the leadership of the U.S. Judicial Conference Committee on the Judicial Branch, to all circuit judges, along with letters from the bipartisan leadership of both Judiciary Committees, asking all courts of appeals to participate.250 Statutory opinions that are appropriate for transmission include those where the court has identified possible grammatical problems that affect meaning and where the statute requires courts to fill in a gap (for example, whether Congress intended the statute to be retroactive). They also include statutes that may present ambiguities in language or ambiguities arising from having to interpret related statutes, or statutes with a perceived problem, about which a judicial opinion suggests the possibility of legislative action.

The questions raised in the opinions251 have been far-ranging. For instance, one opinion confronted the question of whether the Immigration and Nationality Act's (INA) requirement that an individual “lawfully resided continuously” for seven years, necessary for a waiver of inadmissibility, begins when an alien applies for adjustment of status or when that status is actually granted.252 Another case examined whether, pursuant to chapter 13 of the U.S. Bankruptcy Code, debtors, who own rather than lease a vehicle, may deduct ownership costs from repayment plans.253 In still another example, the *690 Seventh Circuit considered whether the Sex Offender Registration and Notification Act's registration requirement applies to travel by offenders that occurred before the Act's passage254 (a gap that the Supreme Court resolved in Carr v. United States255) and whether conviction for failure to register requires evidence that the defendant “knowingly” violated the registration provision.256 Grappling with a provision in the Class Action Fairness Act of 2005,257 appellate courts split as to the meaning of “not less than 7 days after the entry of the order” where a court of appeals “may accept an appeal from an order of a district court granting or denying a motion to remand a class action . . . if application is made to the court of appeals not less than 7 days after entry of the order.”258 The Third Circuit read the statute as meaning “not more than,”259 while the Seventh Circuit read the statute literally.260 Ultimately, Congress amended the section to read “not more than 10 days” after entry of the order.261

Under protocols worked out with legislative personnel, clerks of the courts of appeals send opinions identified by the clerk, staff attorney, or the three-judge panel, to the House Speaker and Senate President Pro Tempore. The letter, which is in the nature of an executive communication, does not comment on the opinion, saying only: “Enclosed please find an opinion of the United States Court of Appeals for the [X] Circuit, which may be of interest to the Congress.”262 At the same time, the clerk sends electronic copies of the letters and opinions to the respective House and Senate Legislative Counsels (and to Governance Institute President Russell *691 Wheeler and to Brett Saxe in the Office of the General Counsel in the Administrative Office of the U.S. Courts).263 The legislative counsel uses the opinions as teaching tools about how the courts of appeals deal with drafting problems.264 The counsel offices also transmit the opinions to the House and Senate committees with jurisdiction over the legislation in question for any action those committees may wish to take.265

Legislative support has been vital to this project throughout its history. Both legislative counsels had participated enthusiastically in the pilot project.266 Legislators themselves have been consistently positive.267 Most recently, in September 2010, in remarks to the Judicial Conference, Senator Jeff Sessions, then-ranking member of the Senate Judiciary Committee, urged the participation of all circuits as a good government project.268

*692 The strongest indicator of the project's value is the legislative testimonials calling for all courts of appeals to participate. Legislators and their staffs, including the Offices of Legislative Counsel, have much to do. That they would call for all circuits to participate, suggests that the transmitted opinions benefit the drafting process.

A second measure of the project's worth derives from the ways that the Legislative Counsel uses the transmissions. Having examined how courts apply statutory language in specific contexts, the Legislative Counsel can be more sensitive to drafting issues that result in litigation. Frank Burk, head of the Senate Office of Legislative Counsel in the 1990s, reported that the project “helped stimulate a comprehensive two-year review of the basic rules of legislative drafting”269 by his office. He further stated that the office “developed a drafting manual that compiles the drafting rules and conventions identified during the review,” and that the office used transmitted opinions as teaching devices for “beginning staff attorneys.”270 James Fransen, Burk's successor, has been similarly supportive.271 House Legislative Counsel M. Pope Barrow concurred, observing that “[t]he opinions of judges would be especially useful if they can identify persistent patterns in drafting errors.”272 Deputy Legislative Counsel M. Douglass Bellis, who has overseen the project in the House for many years, has said that: “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.”273 Both Bellis and Fransen circulate transmitted opinions to their respective staffs because of the opinions' instructive value.274

At first glance, one might think that the most important metric of the project's effectiveness would be the number of statutes passed to remedy problems identified in the opinions. From the outset, however, the project's creators cautioned that its principal purpose was not to produce legislative change, but rather to inform busy legislators and their staffs of possible technical problems in statutes. And, as Bellis noted, Congress may do nothing because it may determine that *693 the relevant court “is making good decisions in hard cases,”275 thereby creating no reason for Congress to intervene. The goal of the project “is not to find ‘mistakes' that Congress made and should correct . . . [but] to open communication so that Congress can learn how the courts are reacting to and interpreting statutes.”276 He observed that the feedback is invaluable: “[I]t calls our attention to drafting situations that are capable of repetition,” suggesting that the referrals may “have a greater ultimate influence on the language of statutes than when (and to the extent) they lead to an amendment of the particular law.”277

In sum, the mechanism for transmitting opinions has the following virtues: (1) it is a neutral mechanism of communication, merely a transmission belt of communication; (2) it does not require the creation of a body or committee; (3) Congress has encouraged it; and (4) it promotes good government. In the words of the chair and ranking members of the House and Senate Judiciary Committees: “These modest efforts have supplied pertinent and timely information to Congress that it might not otherwise receive,” including information about “possible technical problems in statutes that may be susceptible to technical amendment; and, in any case, how statutes might be drafted to reflect legislative intent most accurately.”278 Although it is inherent in the system that there will be occasional tensions between courts and Congress, this effort promotes inter-branch comity and dialogue in a way that reduces conflict. Indeed, it may well be worth considering whether it might be useful to develop a parallel transmission process between the executive branch and Congress, whereby agency general counsels sifting through judicial opinions identify issues of relevance to Congress, perhaps with suggestions for Congress to consider. The Administrative Conference of the United States279 might play a useful role in examining the feasibility of this idea and its implementation.