Adverse court decisions can be treated as recommending technical amendments

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.

I. 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 in uncontroversial legislation.2 He described “the occasional statute in which the legislature has succeeded in *132 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 language4 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

*133 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.

II. 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 *134 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 place for telling new judges, chief judges, and clerks of court about it. In May 2006, the legislative counsel in both houses of Congress asked the Governance Institute to revitalize the project. (The Offices of Legislative Counsel in the House and the Senate are nonpartisan units that provide confidential drafting services requested by individual legislators and *135 legislative committees.19) In his capacity as Institute president, author Wheeler worked to do so with the Judiciary Committees, the legislative counsel, and the Judicial Conference's Judicial Branch Committee. The result was the July 2007 memorandum from Administrative Office director James Duff and Judges Hornby and Katzmann, which was sent to all circuit judges along with letters from the bipartisan leadership of both Judiciary Committees, asking all courts of appeals to participate.20 The Memorandum also announced that the Administrative Office's General Counsel would help institutionalize the project by tracking the number of opinions sent and consulting periodically with the legislative counsel and the appellate courts as to whether the project needed adjustment.21 The General Counsel's office also agreed to look for opportunities to remind judges and clerks of court about this legislative interest. A story in The Third Branch, the federal courts' newsletter, complemented the memorandum.22

Without legislative support, judicial participation would be a waste of time. Both legislative counsel had participated enthusiastically in the pilot project.23 Legislators themselves have been consistently supportive. In 1992, the bipartisan House leadership “welcome[d] this . . . experimental initiative,”24 and *136 the bipartisan Senate leadership said that the project could be “a thoughtful and productive step in improving communications between the judiciary and the Congress to the benefit of both branches.”25 The Joint Committee on the Organization of Congress endorsed the project in 1993.26 In 2001, with the project out of the pilot stage, the chair and ranking member of the Senate Judiciary Committee said that the transmitted opinions have “supplied pertinent information to Congress that it might not otherwise receive in a direct and timely manner,”27 and, as noted, in 2007 the bipartisan leadership of both committees again encouraged all courts to participate.28

III. How the Project Works

Depending on the court of appeals, either the clerk of court or staff attorney identifies appropriate opinions or each three-judge panel does so. There is no strict definition of what kind of opinion is appropriate for transmission. The Duff Memorandum referred to “opinions that point out possible technical problems in statutes” such as “punctuation errors that may create ambiguities, lack of effective dates, and other gaps.”29 The emphasis, in any event, is on technical rather than substantive problems. Thus, an opinion declaring a statute unconstitutional is not appropriate for this project unless it also identifies a possible drafting problem.

A typology developed during the pilot project is instructive. It includes four types of problems:30

*137 • First, statutes that require courts to fill in a gap--to determine whether the statute contemplated a private right of action, for example, or whether Congress intended the statute to be retroactive.

• Second, statutes with ambiguous language that courts must resolve.

• Third, statutes with grammatical problems that can affect meaning. Consider the phrase “the Secretary shall promulgate regulations limiting the quantity therein or thereon to such extent as he finds necessary.” Does “to such extent” modify “shall promulgate” or “quantity” ?

• Fourth, statutes with a perceived problem about which a judicial opinion suggests the possibility of legislative action. In one case surveyed for the pilot project, a concurring opinion tried to let Congress know that some safety and health acts say nothing about who should pay for retraining laid-off workers.

Once an opinion has been identified for transmission, the clerk of court sends it, in the nature of an executive communication, to the Speaker of the House and the President Pro Tempore of the Senate, with copies to the Judiciary Committees, the House and Senate Offices of Legislative Counsel, the General Counsel of the Administrative Office, and the Governance Institute. The Duff Memorandum included suggested text for the transmission letter: simply “Enclosed please find an opinion of the United States Courts of Appeals for XXX Circuit, which may be of interest to the Congress.” The reason for this protocol--not commenting substantively on the opinion in the transmission letter--is the norm that judges speak on matters under litigation through their opinions. Transmitting an opinion to Congress--an opinion that legislative staffers could find through normal legal research if they had more time--is different from elaborating on the opinion *138 extrajudicially. Attention to such subtleties of interbranch relations helps explain the give-and-take necessary to bring the project into existence.

The project puts minimal burdens on the courts. For one thing, by establishing the transmission protocols, and securing testimonials of receptivity from the Congressional leadership, the project relieves the circuit judges from worrying that Congress will misinterpret as officiousness their good-faith efforts to call legislative attention to a possible statutory problem. In this sense, the project is of a piece with what Charles Geyh characterized as the “Judicial Conference['s] . . . long-standing policy of not speaking to Congress unless spoken to.”31

Second, the project imposes few administrative duties on the courts. Either judges on the panel, or a staff attorney, or the clerk's office staff must identify opinions that are appropriate for transmission, but the panel judges are of course familiar with the opinion anyway, and in most courts, the staff attorney's office reads most published opinions in any event. And the clerk of court's transmission duties are essentially ministerial. The clerk of the D.C. Circuit's court of appeals reported that “[a]lthough the project's founders committed significant time and effort to ensure that it came to fruition, the efforts required of court staff to continue the project are minimal.”32

The legislative counsel are the project's catalysts. They analyze each transmitted opinion to identify the technical problem or problems that motivated the court to transmit it and then identify the legislative committee or subcommittee most likely to have an interest in the opinion (or identify it as appropriate for consideration by the House Law Revision Counsel, which maintains the U.S. Code),33 and send it to the relevant entity with a cover letter flagging the point(s) at issue. The counsel make clear that the transmission is purely informational--the recipient can do anything with the opinion, *139 including ignoring it entirely--but the counsel offer the assistance of a staff member, consistent with their offices' mission.

Three other and somewhat related aspects of the project's operations bear mention. First, participation is entirely voluntary. The Judicial Conference and the Administrative Office have no authority to mandate courts' transmitting opinions in any event, and there is no hint in the Duff Memorandum of any obligation to do so. The appeal, rather, is to the virtues of legislative-judicial cooperation. Judge Hornby said that “[b]y responding to this legislative initiative, courts are partners in interbranch cooperation in ways that promote mutual understanding to the benefit of both branches.”34 Administrative Office Director Duff hit the same note: “Congress itself seeks the Judiciary's assistance in encouraging judges to share appellate opinions that bear upon its work.”35

Second, and somewhat related, the project is not part of the judicial branch's legislative agenda. Congress need have no suspicion that the offices of federal judicial administration have screened the transmitted opinions in an effort to ensure that Congress sees only those that comport with Judicial Conference policy.

Third, the mechanism is quite simple, involving the creation of no new body or committee. It is merely a transmission belt that judicial branch and legislative personnel engage in the course of normal operations.