State law revision commissions prove that it can solve if there is enough resources

This idea is not new. Justice (then Chief Judge) Cardozo proposed creating a “Ministry of Justice” to review judicial decisions in 1921, attributing the idea to earlier writings by Roscoe Pound and Jeremy Bentham.82 Cardozo's proposal was part of a broader movement that led to the establishment in most states of judicial conferences and in many states of law revision commissions.83 The former are typically responsible for running the state's judicial bureaucracy and for updating its rules of procedure and evidence. The latter more closely approximate the kind of entity I am proposing for the federal system in that state law revision commissions are usually responsible for examining laws and judicial decisions and making recommendations for reform to the legislature.

Experience with state law revision commissions has generally been good, and several states, particularly New York and California, have had notable success.84 The New York Law Revision Commission was responsible for that state's adoption of the Uniform Commercial Code (“UCC”),85 which helped create momentum for the UCC's nationwide acceptance. The California commission produced an evidence code that has been the basis for practically all subsequent reform in the field.86 In addition to such large projects, both the New York and California Law Revision Commissions have made many less *93 prominent, but still useful, recommendations. Through 1984, 163 of 185 recommendations made by the California Law Revision Commission had been adopted in whole or in part by the state's legislature.87 In its first twenty-three years, the New York Law Revision Commission submitted 315 recommendations dealing with 245 subjects, of which 181 were enacted.88 These successes have led other commentators—among them judges, legislators, and executive officials—to recommend creating a law revision commission for the federal government.89

By also functioning as a law revision commission, a planning agency could do still more to facilitate efficient use of judicial resources.90 Moreover, having a single agency both review pending legislation and track its post-enactment implementation should generate synergies that improve the agency's performance. Caseload forecasting is a relatively new idea. Over time, the new body would gain experience that would improve the quality of its recommendations. This learning process would be aided immeasurably if the persons responsible for forecasting future growth were also responsible for reviewing how courts respond in practice.

C. Improving Communication Between the Branches

A third potential function concerns communication between Congress and the other branches of government. Even a well-budgeted, fully staffed planning agency will miss some problems that arise in the course of administering federal law. These problems are not likely to be overlooked by those who must live with them, however. The judges and executive branch officials responsible for day-to-day administration are thus an invaluable source of information about how to improve the judicial system. Yet communication between the branches on such matters is sporadic and unsatisfactory. Justice Cardozo wrote in 1921:

[t]he means of rescue are near for the worker in the mine. Little will the means avail unless lines of communication are established between the miner and his rescuer. We must have a courier who will carry the tidings of distress to those who are there to save *94 when the signals reach their ears. Today courts and legislature work in separation and aloofness. The penalty is paid both in the wasted effort of production and in the lowered quality of the product.91

This statement remains true nearly seventy years later. Members of Congress and their staff say that more input from judges is desirable.92 Yet judges and executive officials complain constantly that they are unable to communicate their concerns to Congress.93 The complaint is not that doors in Congress are closed, but rather that the judges and officials do not know whom to contact. I should add a caveat: the complaint about not knowing whom to contact does not include budgetary or staffing problems, or controversial issues like habeas corpus in capital cases. Rather, the gap in communication exists for less prominent issues, especially technical statutory issues. On these matters, judges and executive branch officials are apparently unsure whom to inform and so tend to say nothing.

A third function of a planning agency thus could be to facilitate communication between Congress and the other branches by acting as liaison. If a judge renders a decision that he or she believes calls for a legislative response, or if an executive official comes across a problem and believes Congress ought to solve it, the judge or official could contact the agency, which would be responsible for referring the matter to the appropriate committee in Congress. Perhaps this task of referring issues could be coupled with a requirement to research them and make a recommendation. This procedure would save considerable time by weeding out frivolous suggestions. In addition, like the law revision function, processing and reviewing complaints from other branches would contribute to the education of agency staff on how laws work in practice.94

III

Structure of the Agency

While the discussion in Parts I and II explains the usefulness of better planning in preserving judicial resources, one may legitimately ask whether this function requires a new agency. Why not utilize existing bodies like the Office of the Law Revision Counsel in Congress, or the Office of Legislative Affairs and the Office of Legislative and Public Affairs in the legislative and judicial branches? If the problem is lack of resources, Congress can simply provide these agencies with additional funding.